^_^|;',j*B08TON  COLLBS®  MBRaRT 
- tfflESTNUT  HILL,  MASS.  S 


.1 


.w/ 

/ 


THE 


■1 


■V-  , 


CAtiONlCAL  STATOS  OF  PRIESTS 


IN  THE  UNITED  STATES, 


BY 


If- 


Rev.  R.  L.  BU RTSELLA D.  D.  . 


NEW  YORK 

■jr 

John  J.  O’Beien,  Steam  Book  and  Job  Printer,  397  Fourth  Avenue. 


1887. 


BOOTOH  00“*®® 

OHfiSTKUT  HlLIi, 


THE 


CANONICAL  STATUS  OF  PRIESTS 


IN  THE  UNITED  STATES, 


Rev.  R.  L.  BURTSELL,  D.  D. 


I 


♦ 


, c 4 (p  ^ 

J3~7-7x 
\ ^ 7 


• 9 ^ 73-/ 


If  the  receiver  of  this  pamphlet  will  send  One  Dollar 
to  Rev.  R.  L.  Bnrtsell,  D.D.,  P.  0.  Box  2535,  New  York, 
he  will  use  it  to  aid  priests  who  are  deprived  of  the 
exercise  of  the  ministry  to  regain  it  in  accordance  with 
the  laws  of  the  Church. 


INDEX. 


CHAPTER  I, 

Page. 

Is  there  Canon  Law  in  the  United  States  ? A glance  at  the  status  of  the  clergy 
before  and  after  the  Declaration  of  Independence.  The  clergy  requests  the 
H oly  See  to  appoint  a Superior,  and  afterward  by  permission  of  the  Holy  See 
selects  Baltimore  as  the  first  Episcopal  See,  and  nominates  the  first  bishop. 
Bishop  Carroll  holds  a diocesan  synod  in  1791.  In  1810  Archbishop  Carroll 
holds  a meeting  of  the  bishops  of  the  United  States.  In  1829  Archbishop 
Whitefield  convenes  the  first  provincial  Council  of  Baltimore.  Correc- 
tions of  the  decrees  by  the  Holy  See 5 

CHAPTER  II. 

The  Propaganda  quotes  Benedict  XIV  to  restrict  an  improper  extension  of  the 
obligations  which  spring  from  the  obedience  promised  by  priests  at  ordi- 
nation   . 9 


CHAPTER  III. 

The  transfer  of  priests  at  the  will  of  the  bishop  supposes  the  properly  regulated 
will  founded  upon  a conscientious  judgment.  Canon  de  Angelis  sets  forth 
the  principles  of  natural  equity  recognized  in  Canon  Law  for  dealing  with 
priests  removable  at  will.  An  unfair  transfer  entitles  to  a recourse  to 
the  Superior,  by  whom  rehabilitation  will  be  required 12 

CHAPTER  IV. 

The  title  of  ordination  the  source  of  the  priest’s  maintenance.  A glance  at  the 
various  titles  of  ordination.  The  title  of  mission  the  usual  title  in  the 
United  States.  The  Propaganda  lays  down  the  principle  of  collateral  obli- 
gations of  priest  and  diocese  which  flow  from  the  title  of  mission.  This 
title  of  mission  is  not  to  be  considered  ordinary  and  permanent  for  the 
United  States,  but  extraordinary,  and  allowed  as  a privilege  for  a time 17 

CHAPTER  V. 

The  title  of  mission  prevents  entrance  to  any  regular  community  without  the 
consent  of  the  Holy  See.  This  title  sometimes  is  a source  of  greater  perfec- 
tion than  the  profession  in  a religious  order.  Comparison  between  the 
obedience  of  a secular  priest  and  that  of  a member  of  a religious  com- 
munity. Voluntary  transfers  from  one  diocese  to  another  much  facilitated 
by  recent  concessions  of  the  Propaganda 22 

CHAPTER  VI. 

Gradual  development  of  Canon  Law  after  the  first  provincial  Council  of  Balti- 
more. This  Council  gives  attention  to  the  proper  formation  of  parishes, 
and  to  the  relative  positions  of  priests,  Yet  the  rectors’  direction  of  the 
assistants  is  in  relation  to  the  parish  duties 28 

CHAPTER  VII. 

Relations  of  assistants  to  the  pastors.  Controversies  on  purely  ecclesiastical 
matter  between  clerics  or  religious  not  to  be  brought  before  the  civil  court, 

No  such  restriction  imposed  for  purely  secular  matters.  Rome  has  made 
concordats  with  catholic  governments  allowing  ecclesiastics  to  summon 
and  be  summoned  before  the  civil  courts^ on  secular  matters.  Rome’s  wis- 
dom in  yielding  to  the  needs  of  the  times 31 


CHAPTER  Vm. 


Par«, 

The  first  plenary  Council  of  Baltimore  in  18o2  gives  its  attention  to  the  status 
of  priests.  The  second  plenary  Council  urges  the  formation  of  parishes. 
Parochial  rights  in  great  measure  conceded.  The  rector  must  be  consulted 
before  the  division  of  a mission 36 

CHAPTER  IX. 

Canonical  parishes  erected  in  the  United  States.  Irremovable  rectors.  Their 
number  not  to  be  inconsiderately  increased  beyond  one  in  ten.  The 
Roman  instructions  favor  an  enlargement  of  this  number.  Competitive 
examination  requisite  for  the  obtaining  a parish.  The  bishop  must  select 
the  worthiest  of  those  found  to  be  fit  by  the  Synodal  Examiners.  An  appeal 
from  the  bishop’s  selection  lawful 40 


CHAPTER  X. 


All  missionary  rectors  are  permanent  in  office  and  not  to  be  changed  without  a 
serious  cause.  *^Irremovable  rectors  are  subject  to  removal,  if  found  by  the 
specified  trial  to  be  permanently  harmful  to  the  parish.  The  special  causes 
for  removal  in  the  United  States  specified.-. . . r. 

Lii-  -o  ■ • Oil'- 


45 


CHAPTER  XI. 


No  one  should  ever  be  condemned  unheard.  Any  one  accused  has  a right  to 
aid  of  counsel.  Various  forms  of  trial  of 'priests  in  the  United  States.  To- 
day every  cleric  accused  has  a right  to  a trial  before  chastisement  can  be 
inflicted 49 


CHAPTER  XII. 


The  Propaganda  instruction  of  1878  called  for  by  the  complaints  of  the  clergy, 
that  no  trial  was  offered  them  when  chastisement  was  inflicted.  Counsel 
must  be  admitted  in  any  trial.  Any  priest  in  good  standing  may  act  as 
counsel.  The  “Commission  of  Investigation”  superseded  by  the  regular 
episcopal  court  by  Instruction  of  I8b4 54 


CHAPTER  Xm. 

Cardinal  Pecci,  Bishop  of  Perugia,  originates  a summary  procedure  for  trials 
of  clerics.  Pope  Leo  XIII  approves  the  extension  of  this  form  of  procedure 
to  Italy,  France  and  the  United  States.  Strict  adherence  to  the  form  of 
procedure  necessary  to  impose  any  obligation  of  submission  on  the  part  of 
the  accused ^ 59 


. CHAPTER  XIY. 

Bishops  are  primarily  shepherds,  and  secondarily  judges.  The  new  form  of 
procedure  explained.  The  duties  and  rights  of  counsel  for  the  accused 
clearly  announced.  The  Procurator  fiscalis  must  be  an  expert  in  law  and 
in  sifting  testimony • • 63 


CHAPTER  XV. 

The  Vicar-general  must  be  qualified  to  act  ns  judge.  In  the  United  States  the 
bishop’s  qualifications  are  founded  on  better  presumptive  evidence.  Htnce 
the  Instruction  for  the  United  States  differs  somewhat  from  the  summary 
procedure  for  Italy.  The  Roman,  civil  and  ecclesiastical,  forms  of  trial 
compared  with  the  modern  forms.e.  The  judge  bound  by  the  law  as  much 
as  the  accused 


CHAPTER  XVI. 


• Page.. 

Penalties  inflicted  on  clerics.  Clerical  prisons.  Suspension,  Excommunication, 
Interdict.  A censirre  pronounced  after  a legitimate  appeal,  or  founded 
upon  an  intolerable  mistake  need  not  be  heeded 71 

CHAPTER  XVII. 

Appeal  not  necessary  even  from  an  injustice.  The  people  have  an  acknowledged 
right  to  complain  of  excessive  burdens  or  other  grievances.  Kestrictions 
‘ gradually  placed  on  bishops’  authority.  Appeal  first  to  the  Metropolitan 
and  then  to  Propaganda  the  ordinary  way.  Appeal  prevents  execution  of 
sentence  of  removal.  Yet  American  bishops  obtain  a serious  innovation 
upon  this  rule  of  Canon  Law.  Church  property  safeguarded  by  the  civil 
courts ' 76' 


CHAPTER  XVin. 

Consultors  proposed  to  take  part  in  the  administration  of  dioceses,  and  to 
designate  candidates  for  bishoprics,  also  to  act  as  judges  of  causes  of 
clerics.  The  Propaganda  in  1883  recommends  the  establishment  of  chap- 
ters. ^The  American  hierarchy  objects.  The  Propaganda  yields  ; and  the 
American  Council  proposes  still  further  modifications.. which  are  accepted 
The  true  method  of  appointing  consultors  as  determined  by  the  Council 
often  neglected 82: 

CHAPTER  XIX. 

''  .‘i 

When  the  advice  of  the  consultors  is  necessary.  The  bishop  obliged  to  hear 
the  advice,  but  not  bound  to  follow  it.  Action  taken  without  this  advice 
null  and  void,  in  certain  defined  matters.  Serious  modifications  in  the  con- 
sultors’ duties  from  the  recommendations  of  the  Propaganda.  The  consul- 
tors  appointed  for  three  years  only.  How  far  the  contracting  of  debts  for 
church  purposes  is  allowed 86’ 

CHAPTER  XX. 

The  designation  of  candidates  for  bishoprics  by  the  Consultors  and  irremovable 
rectors.  System  of  election  of  bishops  in  different  periods  of  the  history 
of  the  Church 90- 


CHAPTER  XXI. 

Principles  guiding  the  present  selection  of  candidates  for  bishoprics.  Method 
to  be  followed  by  the  consultors  and  irremovable  rectors  in  designating 
candidates.  Independence  required  in  the  designation  of  candidates. 
Hence  the  irremovability  of  electors  is  important.  Instruction  from  Rome 
of  1887  to  safeguard  the  position  of  all  missionary  rectors if:.  94 

CHAPTER  XXII. 

Translations  of  bishops  and  rectors  discountenanced  by  the  laws  of  the  Church, 

No  removal'as  punishment  without  the  right  to  a trial.  Wrong  should  not 
be  done  that  good  may  come.  Motives  for  a transfer.  Hardships  that  may 
occur  in  transfers 99- 


CHAPTER  XXIIL 

Summary  of  the  subjects  treated  of  in  this  pamphlet.  The  legislation  of  the 
Propaganda  consistent  from  its  emendation  of  the  first  Provincial  Council 
of  Baltimore,  in  1829,  to  the  last  declaration  of  March,  1887,  that  no  one 
can  be  removed  without  a just  cause.  -No  one  to  be  punished  without  a 
trial.  The  Propaganda  facilitates  the  hearing  of  complaints,  Roman  legis- 
lation founded  on  natural  equity 102.’ 


PREFACE. 


Many  friends,  clerical  and  lay,  wlio  gave  their  attention  to  a 
series  of  articles  published  by  me  in  the  New  York  Tablet  during 
the  current  year  on  “The  Canonical  Status  of  Priests  in  the  United 
States,”  have  persuaded  me  to  put  them  together  in  pamphlet  form. 
They  are  an  abridgment  of  the  conclusions  reached  by  me  after 
a careful  study  of  the  legislation  of  the  Propaganda,  and  of  the 
Baltimore  Provincial  and  Plenary  Councils  for  the  Church  in  the 
United  States.  I have  thought  it  wise  to  reproduce  them  exactly 
as  they  were  published.  It  would  have  been  a pleasure  to  amend 
any  error  into  which  I might  have  fallen,  but  none  has  been  pointed 
out  to  me.  No  serious  unfavorable  criticism  was,  to  my  knowledge, 
made  upon  them,  whilst  theologians  of  ability,  even  high  in  posi- 
tion, have  thought  that  these  statements  of  the  laws  in  a concise 
form  would  be  very  useful  to  the  clergy.  The  laity  will  no  doubt 
be  also  glad  to  have  a plain  statement  of  the  enactments  made  for 
the  equitable  treatment  of  those  who  have  the  direct  care  of  their 
spiritual  welfare. 

Obedience  to  properly  framed  laws  is  conducive  to  manliness, 
submission  to  caprice  and  whim,  or  merely  personal  standards  of 
i:)ropriety,  leads  to  fawning,  flattery,  meanness  and  worldly  motives 
for  the  fulfillment  of  even  priestly  duties.  Hence  the  clergy 
will  derive  real  profit  from  the  knowledge  of  the  safeguards  of 
law,  with  which  their  position  is  protected  by  the  legislation  of 
the  legitimate  Ecclesiastical  Authority.  The  laity  will  have  more 
confidence  in  their  clergy,  when  they  realize  that  their  positions 
are  not  acquired  or  retained  by  worldly  methods,  but  that  the 
laws  of  the  Church  are  directed  constantly  to  promote  real  merit, 
and  to  guard  the  meritorious  in  their  rights. 

No  disrespect  and  no  disobedience  can  be  charged  against  one 
who  properly  appeals  to  the  law  for  the  maintenance  of  his  rights 
and  it  is  only  individual  weakness  that  resents  the  submission  of 
any  action  detrimental  to  a man  and  a priest,  to  the  scrutiny  of 
the  forms  of  law  prescribed  by  the  Church,  which  is  necessarily 
guided  by  the  principles  of  natural  equity. 


K.  L.  BUKTSELL. 


THE 


CANONICAL  STATUS  OF  PRIESTS 

IN  THE  UNITED  STATES. 


CHAPTER  I. 

Is  there  Canon  Law  in  the  United  States  ? A glance  at  the  status  of  the  clergy 
before  and  after  the  Declaration  of  Independence.  The  clergy  requests  the 
Holy  See  to  appoint  a Superior,  and  afterward  by  permission  of  the  Holy  See 
selects  Baltimore  as  the  first  Episcopal  See,  and  nominates  the  first  bishop. 
Bishop  Carroll  holds  a diocesan  synod  in  1791.  In  1810  Archbishop  Carroll 
holds  a meeting  of  the  bishops  of  the  United  States.  In  1829  Archbishop 
Whitefield  convenes  the  first  provincial  Council  of  Baltimore.  Correc- 
tions of  the  decrees  by  the  Holy  See. 

The  precise  position  in  ecclesiastical  law  of  priests  in  the 
United  States  cannot  be  very  accurately  defined,  especially  at  the 
present  time,  when  modifications  are  gradually  being  introduced 
by  the  concurrent  action  of  the  bishops  and  of  the  congregation 
of  the  Propaganda,  which,  for  this  country,  is  the  mouthpiece  of 
the  Holy  See. 

A loose  way  of  speaking  has  brought  in  vogue  among  the 
clergy,  even  reaching  the  bishops,  the  expression  that  “there  is  no 
Canon  Law  in  this  country.”  This  principle,  if  it  could  be  true, 
would  annihilate  all  ecclesiastical  legislative  power,  even  that  of 
the  bishops. 

The  fact  of  our  not  being  able  to  carry  out  many  of  the  regula- 
tions of  Canon  Law  has  given  rise  to  this  misconception.  All 
human,  and  therefore  the  purely  ecclesiastical  law,  may  be  modi- 
fied by  the  law-giver  or  by  circumstances  preventing  the  thorough 
execution  of  the  law,  or  by  custom. 

Where  there  has  been  no  such  excuse  for  modification,  the 
Canon  Law  has  full  sway  throughout  the  whole  Church. 

A glance  at  the  position  of  priests  and  clerics  in  the  United 
States  at  the  beginning  of  the  revolution  against  England  will 
help  our  investigation.  The  clergy  in  Maryland,  and  the  other 
missions  of  the  original  United  States  had  been  directed  by  the 
Vicar  Apostolic  of  the  London  district  in  England,  who  had  ap- 
pointed a Vicar  General,  a Father  Lewis,  Superior  of  the  Jesuits 
over  the  missions  in  the  colonies. 


6 


The  greater  part  of  the  priests  in  the  countiy  were  ex- Jesuits, 
the  society  having  been  suppressed  in  1773.  Father  Lewis  con- 
tinued to  act  as  Superior  to  those  who  wished  to  live  by  the  rules 
of  the  Society,  and  as  Yicar  General  over  all.  Father  Carroll,  on 
February  20,  1782,  wrote  to  Father  Plowden,  his  friend  in  Eng- 
land: “ I regret  that  indolence  prevents  any  form  of  administra- 
tion from  being  adopted  which  might  tend  to  secure  posterity  a 
succession  of  Catholic  clergymen  and  secure  to  them  a comfort- 
able subsistence.  I said  that  the  former  system  of  administration, 
that  is,  everything  being  in  the  power  of  a Superior,  continued ; 
but  all  those  checks  upon  him,  so  wisely  provided  by  our  former 
constitutions,  are  at  an  end.”  Father  Lewis  called,  on  June  27 
and  November  26,  1783,  general  meetings  of  the  priests  to  delib- 
erate on  the  state  of  religion.  At  the  latter  .meeting  the  clergy, 
in  view  of  the  acknowledged  political  independence  of  the  United 
States  from  England,  addressed  a memorial  to  the  Holy  See  to 
solicit  the  nomination  of  a Superior  in  ‘‘ spiritualibus,”  to  be 
chosen  from  among  themselves. 

They  appointed  also  a committee  to  draw  up  a regulation  “ to 
establish  a form  of  government  for  the  clergy  and  lay  down  rules 
for  the  administration  and  government  of  their  property.”  On 
October  11,  1784,  they  adoj)ted  the  regulation  reported  by  the 
committee  establishing  a regular  chapter  and  district  chapters, 
appointing  a Procurator  distinct  from  the  Superior  in  Spirituali- 
bus,  subjecting  the  latter’s  measures  to  the  approval  of  the  dis- 
trict chapters. 

Father  Farmer  comments  on  this  regulation  in  a letter  to 
Father  Carroll  on  January  19,  1785:  “We'  may  have  a voluntary 
union  among  ourselves,  I allow,  but  it  cannot  constitute  us  a 
canonical  body  of  clergy  unless  declared  and  appointed  as  such 
either  by  the  Supreme  Pastor  or  rather  by  a bishop  set  over  us 
by  him.  Our  association,  even  in  temporalibus,  I am  afraid  will 
be  looked  upon  rather  as  a combination.” 

Meanwhile  the  Holy  See  had  already  watched  the  end  of  the 
struggle  for  independence,  and  as  early  as  July  28,  1783,  through 
the  Nuncio  at  Paris,  had  taken  steps  to  release  the  churches  in  the 
United  States  from  spiritual  subordination  to  England,  and  asked 
Franklin,  then  Ambassador  to  Paris,  to  obviate  any  difficulty  to 
the  appointment  of  a Vicar  ‘Apostolic  with  the  dignity  of  a 
bishop. 

The  clergy,  in  the  meeting  of  October,  1784,  having  heard  of 
this  letter  and  of  the  steps  taken  to  obtain  the  consent  of  Con-' 


gress,  which  had  declared  the  matter  not  within  its  jurisdiction, 
formulated  the  following  curious  resolution: 

It  is  the  opinion  of  the  majority  of  the  chapter  that  a superior 
m spiritualibus  with  powers  to  give  confirmation,  grant  faculties, 
dispensations,  bless  oils,  etc.,  is  inadequate  to  the  present  exi- 
gencies of  religion  in  this  country.  Resolved  therefore. 

First — That  a Bishop  is  at  present  unnecessary. 

Second — That  if  one  be  sent,  it  is  decided  by  the  majority  of  the 
chapter  that  he  shall  not  be  entitled  to  any  support  from  the 
present  estates  of  the  clergy. 

Third — That  a committee  of  three  be  appointed  to  prepare  and 
give  an  answer  to  Home  conformable  to  the  above  resolution. 

Fourth — That  the  best  measures  be  taken  to  bring  in  six  proper 
clergymen  as  soon  as  possible,  and  the  means  be  furnished  by  the 
chapter  out  of  the  general  fund,  except  when  otherwise  provided. 

On  May  12,  1784,  the  Nuncio  at  Paris  wrote  to  Father  Carroll 
for  the  information  necessary  for  the  guidance  of  the  Holy  See  in 
the  establishment  of  a bishop  to  be  appointed  in  the  quality  of 
Vicar  Apostolic,  and  on  June  19, 1784,  the  Holy  See,  in  accord  with 
the  early  request  of  the  missionaries,  appointed  one  of  themselves 
Superior  of  the  Mission,  and  selected  for  this  position  Father 
Carroll.  The  missionaries,  ascertaining  the  determination  of 
Rome  to  appoint  a bishop  for  the  mission,  requested  that  he 
should  not  be  a mere  Vicar  Apostolic,  but  a bishop  with  a title 
from  a regularly  fixed  See  in  this  country.  Pius  VT.  acceding  to 
their  wish  by  decree  of  the  congregation  of  the  Propaganda  of 
July  12,  1789,  directed  the  priests  exercising  the  ministry  in  the 
United  States  to  assemble  and  determine  in  what  city  the  See. 
should  be,  and  who  of  themselves  seemed  most  worthy  to'  be 
raised  to  the  Episcopacy — a privilege  granted  as  a favor,  and  for 
that  time  only.  The  officiating  priests  nominated  Father  Carroll. 
This  choice  was  ratified  at  Rome  on  November  6,  1789,  when 
Pius  VI.  founded  the  Episcopal  See  of  Baltimore,  instituting 
Father  John  Carroll  as  first  Bishop.  He  was  consecrated  at  Lul- 
w*orth  Castle  Chapel  by  Right  Rev.  Bishop  Walmsley,  Father 
Charles  Plowden  delivering  the  sermon  on  the  occasion. 

In  the  first  diocesan  synod  of  1791,  in  the  fourth  session, 
priests,  regular  or  secular,  are  forbidden  to  hear  confessions 
without  previous  approbation  of  the  bishop,  or  after  it  has  been 
withdrawn.  Priests  are  also  forbidden,  under  threat  of  suspen- 
sion, to  abandon  the  congregation  assigned  them,  to  transfer 
themselves  to  another  without  Episcopal  consent,  and  fixing  there 
a residence  to  attempt  to  exercise  parochial  functions. 


8 


In  the  third  session,  7th  decree,  it  is  ordered  that  the  offerings 
made  at  the  service  on  Sundays  and  festivals  by  the  people  shall 
be  divided  into  three  parts,  one  for  the  support  of  the  priests,  the 
other  for  the  poor,  and  the  third  for  the  Church.  And  in  the 
fifth  session.  No.  23,  the  faithful  are  taught  their  obligation  of 
supporting  the  Church  and  pastors  under  mortal  sin. 

In  the  first  meeting  of  the  Archbishop  and  bishops  of  the 
United  States,  in  1810,  some  articles  of  ecclesiastical  discipline 
were  drawn  up,  in  which  it  was  ordained,  first,  that  priests  ap- 
proved in  any  diocese  of  the  United  States  may  exercise  faculties 
in  the  neighboring  dioceses  and  if  they  left  their  own  diocese  with- 
out an  Exeat  they  are  not  allowed  to  use  these  faculties  beyond 
two  months  from  the  time  of  their  departure,  unless  they  shall 
have  received  them  anew  from  the  bishop  into  whose  diocese  they 
have  passed;  and  secondly,  that  superiors  of  regular  or  secular 
congregations  were  not  to  be  allowed  to  withdraw,  against  the 
bishop’s  wish,  their  subjects  when  the  bishop  had  entrusted  them 
with  the  care  of  souls. 

In  1829  Archbishop  Whitefield  convened  the  first  Provincial 
Council  of  Baltimore,  to  which  all  the  bishops  in  the  United 
States,  then  forming  the  one  Ecclesiastical  Province  of  Baltimore, 
were  called.  We  find  an  important  declaration  made  in  this 
Council  with  regard  to  the  relations  of  bishops  and  priests  in  the 
United  States  and  of  priests  toward  one  another.  It  will  be  well 
for  us  to  transcribe  it,  as  it  is  the  first  formal  attempt  to  define 
these  relations. 

The  Provincial  Council  in  its  decrees  as  approved  by  the  Holy 
See  declares 

In  No.  1.  “ As  it  has  been  called  into  doubt  by  certain  persons 

whether  the  prelates  of  the  Church  in  these  United  States  had  the 
right  to  send  the  priests  to  any  part  of  the  diocese  to  exercise  the 
sacred  ministry,  and  to  recall  them  as  they  judged  fit  in  the  Lord: 
we  admonish  all  priests  dwelling  in  these  dioceses,  whether  or- 
dained therefor,  or  adopted  therein,  that  remembering  the  pro- 
mise of  their  ordination,  they  decline  not  to  go  to  the  mission 
designated  by  the  bishop,  if  the  bishop  should  judge  that  therein 
a sufficient  and  decent  support  could  be  had,  and  that  said  office 
suited  the  health  and  strength  of  the  priests.” 

(They  declare  that  they  do  not  wish  to  interfere  with  the  privi- 
leges of  religious,  nor  to  make  any  innovation  with  regard  to 
parochial  benefices,  of  which  they  say  one  only  is  so  far  known  in 
these  United  States,  in  the  city  of  New  Orleans.) 

In  No.  2.  “We  decree  and  declare  that  any  priest  ordained  for 


9 


any  diocese  of  this  province,  is  bound  by  force  of  the  oath  taken 
at  his  ordination  to  remain  in  the  same  diocese,  and  to  obey  his 
Prelate  till  he  has  been  canonically  released.  We  decree  also 
that  by  this  obligation  is  bound  any  priest  adopted  into  any  dio- 
cese: we  declare  to  be  thus  adopted  any  priest  coming  from  an- 
other diocese  as  soon  as  his  testimonials  and  the  dismissory  letters 
of  the  prelate  to  whom  he  had  been  subject,  are  shown  by  the 
priest  himself  to  the  ordinary  to  whom  he  wished  to  become  sub- 
ject, and  by  him  are  definitely  accepted.  By  these  decrees  we  do 
not  in  any  way  wish  to  contradict  whatever  Benedict  XIV  clearly 
teaches  in  regard  to  priests  who  may  wish  to  pass  to  some  reli- 
gious order.” 

No  little  light  will  be  thrown  upon  our  subject  by  calling  atten- 
tion to  the  corrections  made  by  the  Holy  See  to  the  decrees 
as  originally  drafted  by  the  Fathers  of  the  Council.  They  had  in 
the  first  decree  said  that  “priests  by  the  virtue  of  the  promise 
taken  in  ordination  were  obliged  to  obey  the  bishop  commanding 
them  to  attend  to  any  mission  within  the  diocese,  and  thence  re- 
calling them  as  he  thought  fit  in  the  Lord.”  On  this  we  have  a 
most  important  declaration  from  the  Holy  See  through  the  con- 
gregation of  the  Propaganda:  “In  the  first  decree  of  the  Balti- 
more Council  it  is  decreed  that  priests  who  exercise  the  ministry 
in  the  dioceses  of  the  United  States  are  removable  at  w*ill  from 
the  churches  and  missions  which  they  serve.  It  is  in  accord  with 
the  Council  of  Trent  that  priests  should  not  be  ordained  unless 
attached  to  a church  or  ‘ sacred  institution  ’ (loco  pio)  for  whose 
need  or  utility  they  are  appointed.  Generically  the  church  which 
the  priests  must  serve  is  the  diocese  to  which  they  belong,  speci- 
fically it  is  the  establishment  (locus)  to  which  they  are  assigned 
by  the  bishop.” 


CHAPTER  IL 

The  Propaganda  quotes  Benedict  XIV  to  restrict  an  improper  extension  of  the 
obligations  which  spring  from  the  obedience  promised  by  priests  at  ordi- 
nation. 

The  Propaganda  in  its  instruction  upon  the  decrees  of  the  first 
Provincial  Council  of  Baltimore  of  1829,  (GoUectio  Lacensis  Tom  III, 
page  22)  continues  to  comment  upon  the  original  draft  of  the  two 
first  decrees  to  indicate  the  extent  of  the  obedience  resulting  from 
the  promise  made  by  priests  at  their  ordination,  pointing  out  that 
this  promise  does  not  entail  the  strict  obligation  of  going  Avher- 
ever  the  bishop  may  direct;  nor  does  it  suppose  the  right  of  the 
bishop  to  remove  a priest  from  any  place  to  which  he  has  already 


10 


been  assigned.  The  general  law  supposes  that  every  priest  shall 
be  attached  to  a determined  diocese,  and  also  to  a special  position 
which  carries  with  it  fixity  of  tenure,  unless  there  arise  a serious 
and  just  cause  for  change.  The  Fathers  of  the  Council  were  in- 
clined to  exaggerate  their  authority  even  to  the  infringement  of 
the  spirit  of  the  universal  legislation  of  the  church,  and  they  are 
told  to  revise  their  decree  so  as  to  place  it  in  conformity  with,  or 
at  least  to  avoid  contradiction  of  the  general  practice.  The  Pro- 
paganda says: 

“The  Baltimore  Council  declares  this  removability  to  proceed 
from  the  solemn  promise  of  obedience  made  by  priests  to  the 
bishops  when  they  are  ordained,  and  therefore  it  is  determined  in 
the  first  decree  that  ‘ by  virtue  of  the  promise  taken  in  ordination 
they  are  held  to  obey  the  bishop  commanding  them  to  attend  any 
mission  within  the  diocese.’  Benedict  XIV,  speaking  of  this  pro- 
mise of  obedience,  says;  ‘Neither  do  we  think  that  the  solemn 
promise  of  obedience  and  reverence  Avhich  the  priest  makes  in  the 
hands  of  the  ordaining  bishop,  according  to  the  very  old  custom 
of  the  Church,  is  to  be  held  as  a merely  meaningless  form.  Bather 
we  willingly  recognize  that  the  priest  by  virtue  of  that  promise  is 
bound  by  the  law  not  to  depart  from  the  Church  to  which  in  ordi- 
nation he  was  assigned  without  permission  from  the  bishop.” 

“ This  being  so,  it  seems  to  the  Sacred  Congregation  that  the 
Baltimore  bishops  speaking  about  that  obedience  have  attached 
more  {graviori  modo  iltam  explicasse)  serious  meaning  to  it  than 
Benedict  XIV.  For  that  most  wise  Pontiff  affirmed  that  that  pro- 
mise produced  the  effect  that  a priest  without  the  bishop’s  per- 
mission cannot  depart  from  the  church  to  which  he  was  assigned 
in  ordination;  but  the  Baltimore  Council  decrees  that  ‘by  virtue 
of  the  promise  taken  in  ordination  priests  are  obliged  to  obey  the 
bishop  commanding  them  to  attend  to  any  mission  in  the  diocese.’ 
Therefore  it  would  please  the  congregation  that  these  words 
should  be  used  in  the  decree;  We  admonish  priests  that  remember- 
ing the  promise  taken  in  ordination  they  should  not  decline  to  at- 
tend to  any  mission  designated  by  the  bishop.” 

“ The  second  decree  establishes  that  a priest  ‘ by  virtue  of  the 
promise  taken  in  ordination  is  obliged  to  remain  in  a diocese  and 
obey  the  bishop  until  he  has  been  canonically  released.’  This  is 
more  in  accord  with  what  has  been  above  shown  to  have  been 
taught  by  Benedict  XIV.  Some  words  might,  however,  be  added 
to  show  that  in  regard  to  priests  wishing  to  pass  to  a religious 
order  those  things  are  to  be  observed  which  in  the  above  consti- 
tution are  taught  by  Benedict  XIV.” 


11 


We  may  here  consider  that  the  Propaganda  wishes  to  keep  be- 
fore the  eyes  of  the  bishops  in  the  United  States  the  general  dis- 
cipline of  the  Church  in  such  a way  as  to  prevent  their  narrowing 
its  interpretation  by  local  utility  or  even  necessity. 

The  promise  of  obedience  in  ordination  is  too  general  an  ac- 
companiment of  ordination  to  allow  the  narrow  and  strict  inter- 
pretation which  circumstances  of  local  needs  tempted  the  bishoj^s 
then  to  attribute  to  it.  It  will  suffice  to  recall  the  title  of  patri- 
mony alone  on  which  ordination  is  very  frequently  given,  yet 
those  ordained  with  this  title,  though  making  the  identical  pro- 
mise of  obedience  to  the  bishop,  are  not  obliged  to  do  more  than 
fulfill  certain  obligations  of  the  priesthood  without  devoting  them- 
selves directly  to  the  care  of  souls. 

Any  such  obligation  in  this  country  would  more  naturally 
spring  from  the  “title  of  the  mission”  under  which  priests  are 
generally  ordained,  and  which  derives  much  of  its  force  from 
the  oath  made  by  the  priest  to  devote  himself  to  the  care  of 
souls  and  to  serve  the  diocese  for  which  he  is  ordained.  Though 
even  here  the  Propaganda  applauds  and  recommends  “that  priests 
be  admonished  (not  commanded),  that  remembering  the  promise 
taken  in  ordination  (not  by  virtue  of  the  promise),  they  should 
not  decline  to  attend  to  any  mission  designated  by  the  bishop.” 

Yet  its  calling  attention  to  the  fact  that  it  is  in  accord  with  the 
Council  of  Trent,  that  usually  in  ordination  there  is  a fixed  place 
assigned  to  the  priest  in  the  shape  of  a special  “ sacred  establish- 
ment” {locus  pius)  let  this  be  a parish  church,  a chaplaincy  or  a 
vicariate,  or  other  similar  appointment,  shows  that  it  is  supposed 
that  in  every  case  this  assignment  is  to  be  permanent  (though  not 
strictly  perpetual),  because  not  to  be  changed  without  a grave 
and  serious  reason;  and  even  then  the  Sacred  Congregation  will 
use  no  word  implying  the  obligation  of  accepting  another  local 
appointment.  The  obligation  of  obedience  of  a secular  priest  is 
entirely  different  from  that  of  a religious  bound  by  the  vow  of  a 
religious  community,  whereby  he  subjects  himself  to  do  all  com- 
manded by  the  superior  that  is  not  sinful,  and  has  renounced 
the  right  to  a choice  or  the  exercise  of  his  own  will,  though 
even  the  superior  of  a religious  community  is  restricted  in 
his  commands  by  the  constitution  of  the  order.  The  secular 
priests’  obedience,  promised  at  the  reception  of  Holy  Orders 
is  almost  negative  in  its  character,  forbidding  him  to  leave 
the  diocese  or  his  charge  without  permission  of  the  bishop;  but 
not  obliging  him  (above  all  if  he  has  a just  cause  to  decline)  to 
accept  any  in  pirticular  at  his  ordination. 


12 


If  Archbishop  Carroll  had  been  the  presiding  genius  of  this. 
Provincial  Council,  he  would  not  have  been  misled  into  narrow- 
ing too  stringently  this  obligation  of  obedience,  remembering  the 
frank  way  in  which  he  had  stated  it  in  a letter  of  1779,  quoted  in 
De  Courcy  Shea’s  History  of  the  Church  in  the  United  States. 
He  writes:  “I  have  care  of  a xerj  large  congregation.  * * * 

Yet  because  I live  with  my  mother,  for  whose  sake  alone  I sacri- 
ficed the  very  beat  j)lace  in  England,  and  told  Mr.  Lewis  (the 
Yicar-General),  that  I did  not  chose  to  be  subject  to  be  removed 
from  place  to  place,  now  that  we  had  no  longer  the  vow  of  obedi- 
ence to  entitle  us  to  the  merit  of  it,  he  does  not  choose  to  bear 
any  part  of  my  expenses.” 

He  understood  and  makes  clear  the  distinction  between  the 
obligation  by  which  he  w^as  held  when  a Jesuit  to  go  wherever 
sent  by  the  superior  from  the  obedience  which  he  owed  the  Yicar- 
General,  even  though  he  had  full  powers  to  govern  the  Church 
in  the  United  States  from  the  Yicar  Apostolic  of  the  London  Dis- 
trict, w'ho  was  really  the  bishop  without  the  direct  title. 

Benedict  XIY.  in  Lib.  III.  De  Serv.  Dei  Beatif.  cap.  XLI.,  par. 
9,  says  of  members  of  regular  communities,  bound  even  by  the 
solemn  vow  of  obedience: 

“ The  Superior  is  to  be  obeyed  in  w^hatever  belongs  to  the  rule 
of  the  Order,  and  in  those  things  that  ma}"  be  deductions  of  the 
rule,  but  in  other  things  that  are  not  deducible  from  the  rule  the 
obedience  is  not  necessary  but  a matter  of  greater  perfection.” 

The  general  law^s  of  the  Church,  as  also  the  diocesan  statutes, 
w’hen  conformed  to  the  general  law,  are  the  guides  and  limits  of 
the  obedience  of  the  secular  priests,  those  having  the  care  of  souls 
having  sj^ecial  duties  w^hich  spring  from  their  office  wdiich  they 
assume  voluntarily,  or  as  is  the  case  in  this  country,  they  prom- 
ise to  assume  wdien  ordained. 


CHAPTEK  III. 


The  transfer  of  i3riests  at  the  will  of  the  bishop  supposes  the  properly  regulated 
will  founded  upon  a conscientious  judgment.  Canon  De  Angelis  sets  forth 
the  principles  of  natural  equity  recognixed  in  Canon  Law  for  dealing  with 
priests  removable  at  will.  An  unfair  transfer  entitles  to  a recourse  to 
the  Superior,  by  whom  rehabilitation  will  be  required. 

The  Propaganda,  while  insisting  wdth  the  Fathers  of  the  Balti- 
more Council  of  1829,  upon  a moderate  interpretation  of  the 
obedience  of  a priest  to  his  bishop  in  view  of  the  promise  made  at 


13 


liis  ordination,  took  occasion  to  call  attention  to  tlie  reciprocal 
and  equitable  obligation  contracted  thereat  by  the  bishop  to  deal 
with  the  priest  not  according  to  whim  but  with  mature  judgment, 
remembering  the  account  that  the  bishop  will  be  called  to  give  to 
the  Lord  of  the  j^roper  administration  of  his  diocese.  When  the 
will  of  the  bishop  is  mentioned  as  the  guide  for  his  action,  he  is 
not  allowed  to  follow  his  whim  or  caprice,  or  even  his  pleasure, 
but  a judicious  determination  to  provide  for  the  welfare  of  both 
priest  and  people,  whence  is  derived  the  expression  of  the  limita- 
tion of  his  will:  “As  he  determineth  in  the  Lord.” 

Hence  the  Propaganda  emphasized  first  the  generic  relation  of 
the  priest  to  the  diocese.  As  he  is  not  free  to  leave  it  without 
permission  from  the  bishop,  so  the  bishop  is  not  free  to  cut  him 
off  from  it.  This  reciprocal  obligation  is  made  still  stronger  in 
this  country  where  the  title  of  mission,  under  which  priests  are 
generally  ordained,  is  not  derived  from  the  bishop  but  from  the 
Propaganda : whence  even  where  there  should  arise  serious  cause 
for  cutting  off  a priest  from  a diocese,  it  cannot  be  done  without 
the  Propaganda’s  consent.  j 

After  mentioning  the  generic  relation  to  the  diocese,  the  Prop- 
aganda reminded  the  bishops  of  the  general  church  legislation, 
whereby  each  priest  at  his  ordination  is  assigned  to  a particular 
church  or  pious  establishment  to  which  he  is  to  be  attached  per- 
manently, that  his  temj)oral  maintenance  may  not  be  in  jeopardy. 
The  bishop  is  not  supposed  to  remove  him  from  the  one  to  which 
he  has  been  assigned  and  which  has  been  accepted  without  a 
serious  and  a just  cause,  that  is,  from  the  welfare  of  religion  and 
of  souls,  or  to  use  the  accepted  formula,  “prout  in  Domino  judi- 
caverit.”  At  any  time  if  the  bishop  should  deal  arbitrarily  in  his 
removal  in  regard  to  any  priest,  the  latter  has  a right  to  have 
recourse  to  the  canonical  superior  of  the  bishop,  who  may  claim 
the  right  of  deciding  upon  the  sufficiency  of  the  cause  for 
removal,  and  if  not  satisfied  of  its  reasonableness,  will  insist 
upon  his  restoration  to  his  charge  or  office.  We  deem  it  proper 
to  fortify  this  position  with  the  opinion  of  a Canonist  who  died 
but  recently  and  was  fully  alive  to  all  the  circumstances  of 
Catholic  and  Missionary  countries  that  might  have  tended  to  do 
away  with  the  former  discipline  of  the  Church  in  this  regard;  cir- 
cumstances to  which,  especially  in  Missionary  countries,  appeal  is 
made  to  suggest  an  utter  variance  from  the  former  equity  of 
Canon  Law.  Very  often  this  comes  from  the  false  notion  that 
Canon  Law  does  not  bind  Missionary  countries,  that  therefore 
everything  is  left  to  the  will  of  the  Superior  or  Bishop,  who  may 


14 


mistakingly  consider  himself  in  these  circumstances  the  source  of 
all  law.  If  the  bishop  was  always  wise  in  his  judgment,  less 
inconvenience  would  result  from  this  notion.  The  Pope  does  not 
deem  himself  the  capricious  originator  of  natural  equity;  but  as 
the  Canon  law  is  the  outcome  of  natural  equity,  so  the  Pope 
deems  himself  bound  to  act  in  accord  with  it.  One  of  these  first 
equitable  princqiles  of  natural  law  compels  the  law-giver  not  to 
take  away  from  individuals  their  personal  rights,  except  where 
their  exercise  is  incompatible  with  the  general  good.  All  law  is 
made  for  the  common  welfare.  Hence  the  Pope  never  gives  a 
l^rohibition,  nor  makes  a removal,  nor  obliges  the  taking  of  a 
burden  except  where  the  public  good  prompts  his  action,  and 
hence  has  always  a serious  and  just  cause  for  which  he  knows 
how  to  give  an  account  to  the  Just  Judge.  But  as  soon  as  it  is 
said  that  a “ certain  occupant  of  a position  is  removable  at  will 
("‘amoviblis  ad  nutum”) — some  think  that  the  “adnvtum''  means 
the  pleasure,  the  whim,  the  caprice,*  aye,  and  sometimes  even  the 
spite  of  the  superior.  Canon  He  Angelis  was  professor  of  Canon 
Law  in  the  Homan  Seminary  and  a consultor  of  Propaganda. 
His  book  is  therefore  a useful  guide  for  Catholic  and  missionary 
countries.  In  tom.  1,  part  2,  page  55,  he  says:  “Temporary 
vicars,  that  is,  removable  at  will,  have  not  canonical  institution, 
but  simple  ‘ deputation  nor  is  such  vicariate  apt  to  become  a 
title  for  ordination  because  of  the  want  of  perpetuity,  for  they  can 
of  their  own  accord  renounce  it,  nor  must  the  renunciation  be 
necessarily  subject  to  the  acceptation  of  the  Bishop.  But  here  it 
may  be  asked:  ‘ Can  movable  vicars  be  removed  without  cause,  so 
that  it  is  in  the  power  of  the  senders  to  remove  them  in  what- 
soever manner,  and  so  that  they  have  no  remedy  in  law  to  arbi- 
trary dealings  against  them  ? To  this  question  to-day  principally 
is  required  a direct  and  full  reply,  because  the  question  is  red 
hot.  The  answer  in  my  judgment  maybe  thus  given:  In  the 
first  place  I remark  that  against  the  decree  of  removal  of  a mov- 
able vicar  there  is  no  true  appeal  but  a recourse  to  the  Pontiff, 
for  as  their  position  is  not  determined  by  law  as  is  that  of  titular 
parish  priests  and  perpetual  vicars,  hence  the  ordinaiy  remedy  of 
law  does  not  belong  to  them  whereb}^  to  complain  of  their  denied 
rights,  but  only  a recourse  which  in  all  cases  belongs  to  these 
removed  clerics  from  ‘a  certain  unwritten  equity,’  as  Cardinal  de 
Luca  says  in  Part  1 He  Benef,  Disc  97,  No.  13.  And  this  unwrit- 
ten equity  will  be  explained  below.  It  is  to  be  remarked,  how- 
ever, that  the  bishop  or  other  person  removing,  is  not  obliged  to 
explain  to  the  removed  vicar  the  cause  of  his  removal,  but  only  to* 


15 


make  known  his  wish  to  effect  the  removal;  but  he  is  obliged  to 
reveal  this  cause  or  motive  to  the  Supreme  Pontiff,  to  whose 
tribunal  recourse  is  had;  or  at  least  to  indicate  the  whole  process 
of  removal,  that  he  may  admit  or  reject  the  recourse.  It  is 
thirdly  to  be  remarked  that  there  is  a great  difference  between 
the  simple  removal  of  a temporary  vicar  and  his  susjjension  ‘ ex 
informata  conscientia.’  For  though  even  for  the  suspension  ‘ex 
informata  conscientia  ’ the  bishop  is  not  obliged  to  reveal  to  the 
suspended  one  the  motives  which  induced  him  to  proceed;  yet  it 
is  certain  that  they  are  to  be  made  known  to  the  Supreme  Pontiff 
to  whom  recourse  has  been  had,  and  on  the  other  side,  unless 
there  were  serious  reasons,  this  suspension  ‘ ex  informata  consci- 
entia ’ does  not  hold,  as  it  is  a real  punishment  which  is  not 
admitted  except  for  crime.”  On  pages  58  and  59  he  writes: 

“As  to  bishops’  dealings  with  regard  to  secular  clergymen,  who 
are  ‘ vicars  removable  at  will,’  I consider  the  following  to  be  held 
from  the  answers  of  the  Sacred  Congregations: 

“ 1.  If  the  recall  of  the  vicar  takes  place  from  ‘ hatred  and 
malice,’  then  there  is  the  case  of  rehabilitation  or  retention  of 
these  vicars  in  the  office  from  which  they  have  been  deposed. 
This  is  most  openly  admitted  by  Cardinal  De  Luca  (in  cit.  dis.  97 
num®,  and  by  the  ‘Kota,’  in  Causa  Hispalens,  21st  June, 

1641,  Coram  Pentingero,  even  though  the  Kota  held  that  the 
bishops  could  remove  said  temporary  vicars  wdthout  cause.  * * * 

2.  If  likewise  the  recall  should  cause  loss  of  honor  or  disgrace, 
or  be  seriously  prejudicial  to  the  vicar,  then  the  recall  without 
cause  should  be  annulled  and  the  vicar  retained  in  his  office,  as  is 
held  by  Cardinal  De  Luca  loco  cit. 

3.  Illness  or  old  age  is  not  sufficient  cause  for  the  removal  of 
the  vicar,  “temporaneus  in  beneficio,” — apjDointed  temporarily  to 
a benefice — if  wdien  young  and  in  health  he  attended  to  his  duty. 
In  this  the  laws  make  no  distinction  between  perpetual  and  tem- 
porary benefices,  as  is  shown  by  Fagnanus  in  cap  Consultationi- 
bus  de  clerico  Aegrotante  num,  45;  and  that  this  is  carried  out  in 
mere  offices  in  accord  with  the  practice  of  the  Apostolical  curia 
is  shown  by  the  same  author.  The  same  is  felt  by  Keiffenstuel, 
in  Commentar,  ad  lit  de  Clerico  Aegrotante,  not  only  in  regard  to 
benefices  but  also  as  to  Ecclesiastical  administrations  and  offices. 
And  this  is  the  decision  of  Cardinal  De  Luca  (in  disc,  20  de  re- 
galibus  admateriam  officiorum.)  This  is  shown  by  the  authors, 
to  be  the  decision  of  the  Sacred  Congregation  of  the  Council, 
which  on  May  25,  1822,  retained  all  the  income  to  a temporary 
vicar,  who  on  account  of  very  advanced  age  w^as  powerless  to  give 


16 


his  service  to  the  cure  of  souls,  though  the  ordinary  had  explained 
that  thus  no  provision  could  be  made  for  the  ministry. 

4.  If  no  cause  of  recall  has  been  brought  and  made  known  to 
the  Sacred  Congregation,  it  has  been  the  custom  to  annul  the  re- 
call and  retain  the  temporary  vicar  in  the  office  from  which  he 
has  been  deposed.  Giraldi  (in  addit  ad  Tract,  de  Officio  et  Pot. 
Par.  cap  115),  speaking  of  temj)orary  vicars  says:  “And  though 
removable  parish  priests  may  be  removed  as  often  as  their  re- 
moval is  needed,  yet  it  must  be  understood  that  in  fact  they  are 
not  to  be  removed  without  legitimate  cause.”  (Sacred  Congrega- 
tion Council,  11th  July,  1626,  S.  Cong,  of  Bish.  and  Reg.  in  Sul- 
monensi,  24  May,  1645,  and  16th  May,  1653),  and  a little  further 
on  he  says:  “All  removable  curates  can  be  removed  at  the  will  of 
the  diocesan  bishop.  But  they  must  not  be  removed  except  for 
reasonable  and  just  cause.  For  the  rule  of  justice  is  to  be  fol- 
lowed, and  the  honor  consulted  of  those  who  are  to  be  removed, 
and  this  is  the  “unwritten  equity”  of  which  Cardinal  de  Luca 
spoke  above  in  Part  I,  Disc.  97,  De  Benef,  and  from  which  a re- 
course or  complaint  to  the  Superior  is  allowable  against  the  ex- 
ercise of  whim;  at  least  involving  a certain  summary  judgment 
of  the  cause  for  which  the  removal  takes  place,  as  there  hardly 
happens  a case  without  some  hatred,  or  without  a prejudice 
resulting  in  one’s  reputation  or  otherwise.” 

He  cites  the  decisions  of  the  Sacred  Congregation  insisting 
upon  this  rehabilitation,  where  no  cause  was  adduced,  reversing, 
as  he  says,  the  excessive  rigor  shown  by  the  Rota  in  the  case 
cited  above;  and  concludes  that  “temporary  vicars  may  be  re- 
moved for  a serious  cause,  but  whilst  not  properly  an  appeal,  still 
a recourse  for  redress  to  the  Superior  is  always  open  to  them.” 

While,  therefore,  from  grave  reasons  of  administration,  there 
may  at  times  be  allowed  a transfer  of  a movable  priest  from  one 
church  or  establishment  to  another,  there  is  the  right  of  com- 
plaint to  the  superior,  if  this  transfer  be  not  made  so  as  not  to 
imply  any  blame  or  fault  in  the  one  so  removed.  Hence  a fair 
similarity,  as  far  as  possible  an  equality  of  positions  must  be 
clear  in  the  transfer.  The  priest’s  reputation  must  be  protected 
from  any  arbitrary  act.  If  his  good  name  is  at  all  touched,  he  has 
a positive  right  to  the  proper  process  and  trial  in  self-defence. 
And  if  any  such  injury  should  unfairly  or  unjustly  be  attached  to 
the  transfer,  the  Equity  of  the  Church  requires  his  reinstatement. 


17 


CHAPTER  IV. 

The  title  of  ordination  the  source  of  the  priest’s  maintenance.  A glance  at  the 
various  titles  of  ordination.  The  title  of  mission  the  usual  title  in  the 
United  States.  The  Propaganda  lays  down  the  principle  of  collateral  obli- 
gations of  i^riest  and  diocese  which  flow  from  the  title  of  mission.  This 
title  of  mission  is  not  to  be  considered  ordinary  and  permanent  for  the 
United  States,  but  extraordinary,  and  allowed  as  a j)rivilege  for  a time. 

Anciently  the  church  building  was  called  a “ title,”  and  as  there 
was  a rule  that  no  one  should  be  promoted  to  orders  who  was  not 
attached  to  a special  church,  there  arose  the  formula  that  “ a 
cleric  was  not  to  be  ordained  without  a title.”  Thus  the  ordained 
were  assigned  to  a special  service  connected  with  their  church  or 
title,  and  from  it  drew  the  means  of  maintenance.  Soglia  (Just. 
Jur.  Priv.  Cap.  VI  de  Sac.  Ord.,  § LIV,  de  Tit.  Ord.)  says;  ‘‘As 
the  cleric  was  bound  to  the  perpetual  service  of  his  church,  so  he 
acquired  the  right  to  obtain  from  its  revenues  according  to  his 
office  a competent  maintenance.  The  title  thus  produced  a double 
obligation:  the  cleric  was  bound  to  a perpetual  service  of  the 
church,  and  the  church  was  bound  to  provide  for  the  maintenance 
of  the  cleric.”  The  original  title  of  ordination  was  that  of  the 
service  of  the  church,  “Servitii  Ecclesise.”  This  was  the  only  title 
for  many  centuries.  But  in  course  of  time  the  property  of  the 
churches  was  divided  and  the  portion  belonging  to  the  clergy  was 
also  apportioned  in  so  many  parts  according  to  the  various  offices 
assigned  to  the  clergy.  These  portions  received  the  name  of 
benefices;  whence  the  expression  to  be  ordained  with  a title  be- 
came equivalent  to  that  of  being  ordained  with  a benefice.  This 
benefice  was  necessary  even  for  the  reception  of  the  minor  orders 
(D’Angelis  Prael  Jur.  Can,  Lib.  I,  Tit.  XI,  pp.  2^8  et  seq.).  By 
neglect  of  the  church  discipline  many  were  ordained  without  a 
benefice  or  title,  though  they  were  considered  to  have  incurred 
irregularity  and  were  thereby  unfitted  to  attend  to  the  ministry 
of  the  Church.  They  very  often  took  part  in  secular  business  to 
the  lowering  of  the  clerical  order  and  to  the  scandal  of  the  faith- 
ful. The  abuse  had  become  so  great  that  the  third  Council  of 
Lateral!  could  only  see  its  way  to  the  prohibition  where  there  was 
not  sufficient  support  from  a special  church  to  confer  the  orders 
of  deaconship  and  the  priesthood  unless  it  were  shown  that  the 
applicant  for  these  orders  had  sufficient  means  from  his  own  or 
the  paternal  estate.  Innocent  III,  sought  to  extend  this  rule  to 
all  clerics  but  failed.  Since  the  time  of  Innocent  IV,  a title  of 
ordination  has  been  required  for  sub-deaconship ; but,  already 
patrimony  was  deemed  a sufficient  title  for  ordination.  Thence 
arose  another  abuse  that  some  bishops  would  confer  orders  on 


18 


those  who  would  promise  not  to  trouble  them  for  their  support. 
The  Council  of  Trent  sought  to  recall  the  early  discipline  of  re- 
quiring that  every  cleric  should  be  attached  to  a special  church  or 
pious  institution  (loco  pio)  and  made  the  rule  that  no  one  should 
receive  sacred  or  major  orders  if  not  provided  with  a benefice 
sufficient  for  a proper  support;  limiting  the  right  of  the  bishops 
to  confer  orders  on  the  holders  of  patrimony  or  a pension  only 
when  the  needs  of'  the  diocese  required  it.  The  pension  here 
mentioned  is  a fixed  revenue  assigned  to  the  holder  in  perpetu- 
ity in  sufficient  amount  for  the  support  of  the  ordained,  whether 
it  be  derived  from  possessions  of  the  Church  or  from  the  laity. 
The  Council  declared  any  bishop  to  incur  suspension,  reserved  to 
the  Pope,  from  conferring  orders  for  three  years  who  should  or- 
dain any  one  not  having  the  title  of  benefice  or  of  patrimony,  with 
the  compact  that  the  ordained  should  not  require  his  support 
from  the  bishop.  This  is  still  in  force.  By  the  Council’s  decree 
any  one  so  ordained  incurred  suspension  from  the  exercise  of  the 
order  conferred;  but  since  the  Bull  “Apostolicse  Sedis”ofPius 
IX,  in  1869,  this  is  considered  to  be  no  longer  in  force;  nor  do 
those  now  ordained  with  a false  title  incur  censure. 

In  favor  of  the  religious  life,  a special  title,  that  of  ‘‘Poverty,” 
was  attached  to  the  solemn  j)rofession  in  an  approved  religion, 
giving  to  the  professed  a right  to  their  maintenance  from  the  pos- 
sessions of  the  order  or  from  the  alms  given  by  the  piety  of  the 
faithful  to  the  community.  Akin  to  this  is  the  title  of  “Common 
Table”  (Mensse  Communis),  granted  to  certain  communities 
recognized  by  the  Holy  See  which  either  have  no  vows  or  only 
simple  vows,  and  whence  the  members  may  pass  to  the  secular 
priesthood.  The  community  is  held  responsible  for  their  maint- 
enance until  they  are  canonically  detached  from  the  community. 
The  precise  purpose  of  the  Church  in  requiring  a title  of  ordina- 
tion is  to  avoid  the  lowering  of  those  constituted  in  sacred  orders, 
that  they  may  have  no  excuse  to  engage  in  secular  pursuits  or  be 
compelled  to  beg  for  their  maintenance;  hence  the  principle  that 
has  always  guided  the  Church  required  that  those  to  be 
ordained  should  in  perpetuity  be  provided  with  a sufficient  and 
decent  sujDport. 

One  of  the  many  disciplinary  matters  to  be  adjusted  at  the 
General  Council  of  the  Vatican  was,  it  is  well  known,  the  question 
of  the  title  of  the  ordination.  Throughout  Europe,  even  in  Cath- 
olic countries,  the  confiscation  of  ecclesiastical  possessions  by  the 
civil  governments  has  well  nigh  done  away  with  ecclesiastical 
benefices;  and  the  pensions  that  are  allowed  by  some  of  them  to 


19 


priests  actually  in  service  of  tlie  churches  are  not  gTaiited  till 
after  ordination.  Hence  it  has  been  necessary,  where  the  title 
of  patrimony  or  pension  cannot  be  had,  to  apply  to  the  Holy  See 
for  a relaxation  of  the  law  of  the  Council  of  Trent.  It  has  been 
the  custom  of  the  Holy  See  to  avoid  granting  an  indefinite  relax- 
ation, but  it  has  limited  the  dispensation  to  a fixed  number  of 
persons,  or  to  a fixed  body  or  community  of  persons,  placed  in 
specially  mentioned  circumstances.  (Lucidi,  De  Visit  Sac.  Lim., 
Part  la,  Yol.  10,  p.  461.) 

A special  provision  was  established  with  the  express  sanction  of 
the  Holy  See  for  the  countries  subject  to  the  sacred  congregation 
of  the  Propaganda  that  sacred  orders  might  be  conferred  with 
the  title  of  Mission,  which  imposes  the  obligation  of  their  main- 
tenance upon  the  Apostolic  Vicariates  or  Dioceses  for  which  they 
are  ordained,  and  which  they  bind  themselves  by  oath  to  serve 
for  life.  “ They  obtain  the  necessaries  of  life  from  the  sacred 
ministry  to  which  they  are  attached.”  As  this  is  the  usual  title 
under  which  sacred  orders  are  usually  conferred  in  the  United 
States,  we  shall  consider  this  title  at  some  length. 

The  ordination  under  this  title  was  granted  as  a privilege  to 
certain  Pontifical  Colleges,  among  which  pre-eminent  is  the  Urban 
College  of  the  Propaganda,  established  and  endowed  with  this 
privilege  by  Urban  VIII.  in  1638. 

An  oath  is  an  obligatory  accompaniment  of  the  title  of  mission; 
which  is  in  this  form: 

“ I N.,  son  of  N.,  of  the  diocese  or  vicariate  of  N.,  promise  and 
swear  that  after  I have  been  promoted  to  sacred  orders,  I shall 
not  enter  any  religion,  society  or  congregation,  nor  make  therein 
a profession  without  a special  permission  of  the  Apostolic  See,  or 
of  the  Sacred  Congregation  for  the  propagation  of  the  faith. 

“ I vow  likewise  and  swear  that  in  this  diocese  or  vicariate  or 
(as  they  have  to  swear  who  are  not  as  yet  affiliated  to  a mission) 
in  the  mission  to  which  it  will  please  the  Holy  See  or  the  Sacred 
Congregation  for  the  propagation  of  the  faith  to  assign  me,  I 
shall  during  life  work  and  labor  in  the  administration  of  sacred 
things  for  the  salvation  of  souls  under  the  entire  direction  and 
jurisdiction  of  the  reverend  prelate,  who  is  for  the  time  the 
ordinary : I shall  also  do  so,  if  by  permission  of  the  Holy  See  I 
shall  enter  any  religion  or  any  society  or  community  of  regulars, 
even  if  I shall  have  made  therein  my  profession. 

“ I vow  and  swear  that  I understand  this  oath  and  its  obliga- 
tion, and  that  I shall  fulfill  it — so  may  God  help  me  and  these 
holy  gospels  of  God.” 


20 


Very  often  tlie  administering  of  this  oath  was  neglected.  The 
fathers  of  the  First  Provincial  Council  of  St.  Louis  even  asked  the 
Holy  See  to  remit  the  obligation  of  taking  the  oath  binding  per- 
petually to  the  service  of  a specified  diocese ; but  in  vain. 

As  the  ordained  under  the  title  of  the  mission  is  bound  to  the 
perpetual  service  of  the  specified  mission,  diocese  or  vicariate, 
this  mission  or  diocese  is  most  reasonably  obliged  to  provide  for 
his  support  as  long  as  by  fault  of  his  he  does  not  render  himself 
unfit  for  the  administration  of  sacred  things.  The  Congregation 
of  the  Propaganda  has  always  taken  upon  itself  the  duty  of 
enforcing  the  mutual  obligation.  It  denies  to  the  priest  the 
j)rivilege  of  leaving  the  exercise  of  the  ministry  in  that  diocese  or 
vicariate,  nor  will  it  allow  him  to  be  dismissed  without  its  per- 
mission, or  that  of  the  Holy  See.  A decree  of  the  Eighth  Pro- 
vincial Council  of  Baltimore,  held  in  1855,  stated  “ that  priests 
who  are  ordained  under  the  title  of  the  mission,  or  should  after- 
ward acquire  it,  lose  their  title,  when  they  receive  from  their 
bishop  a dismissorial  letter  absolving  them  from  all  obligation  of 
serving  the  mission  of  that  diocese,  and  by  this  fact  they  are 
deemed  suspended  from  their  order  until  they  recover  it  or 
obtain  another  canonical  title:  the  same  is  to  be  held  of  those 
23romoted  to  orders  under  another  canonical  title  who  afterwards 
lost  it.  They  do  not  recover  the  title  of  the  mission  until  being 
ado2)ted  into  another  diocese  they  take  an  oath  binding  them  to 
l^eiq^etually  serve  its  missions.”  The  Congregation  of  the  Propa- 
ganda sent  at  once  notice  that  it  was  23re2)aring  an  instruction  on 
the  Title  of  Ordination,  wherein  It  would  lay  down  the  2)rinci2:)les 
which  govern  the  Proj^aganda,  and  must  be  followed  by  the 
lates  having  subjects  ordained  or  acce]3ted  under  this  title.  This 
was  x^ublished  on  A^Dril  17,  1871.  In  it  is  laid  down  that  this  is 
an  extraordinary  title,  under  the  special  suj^ervision  of  the  Sacred 
Congregation  of  Pro^^aganda,  which  Avill  not  grant  its  use  2>erma- 
nently,  but  only  for  a restricted  number  of  cases,  or  at  most  for 
a fixed  23eriod  of  time.  It  cautions  the  bishoj^s,  when  wishing  to 
use  the  title  for  ordination,  to  have  in  mind  the  serious  duties 
that  this  title  imj^oses  of  working  for  life  in  the  arduous  tasks  of 
the  sacred  ministry.  Hence  only  those  are  to  be  allow^ed  this 
title  whose  endowments  fit  them  for  and  whose  character  promises 
l^erseverance  in  this  imj^ortant  labor.  The  chosen  ones  are  to  be 
obliged  to  take  the  oath  to  serve  for  life  the  mission  to  wdiich 
they  are  to  be  attached. 

This  title  may  be  obtained  before  actual  presence  in  the  mis-* 
tion,  but  requires  the  readiness  to  go  to  the  mission,  when  the 


21 


superiors  desire  it.  And  as  private  good  must  cede  to  the  public 
welfare,  those  ordained  under  this  title  are  forbidden  to  enter 
religion  (a  regular  order)  until  the  Holy  See,  after  consultation 
with  the  Ordinary,  may  deem  it  allowable.  This  title,  as  the 
other  titles  of  ordination,  according  to  the  rules  laid  down  in  canon 
law,  may  be  lost  by  the  priest  or  may  be  withdrawn  by  the  Ordinar- 
ies, but  only  with  the  consent  of  the  Propaganda,  to  which  belongs 
the  right  to  absolve  from  the  obligation  of  the  oath.  The  loss  of 
any  title  does  not  involve  the  suspension  of  the  priest,  though  the 
ordinaries  must  oblige  the  ordained  to  substitute  another  title,  as 
is  laid  down  in  the  Canons.  Pirrhing  states  (Lib.  III.,  Tit.  VIII., 
De  Concess  Praeb.  § III.)  that  privation,  even  of  a benefice,  is 
decreed  in  some  cases  by  the  violation  itself  (ipso  jure)  of  the 
law;  and  in  other  cases  by  the  sentence  of  the  Judge  for  certain 
crimes  specified  by  the  law  as  homicide,  perjury,  sacrilege, 
sodomy,  adultery,  etc. 

Any  regular  priest  absolved  from  the  solemn  vows,  or  a priest 
leaving  any  congregation,  must  be  compelled  to  obtain  another 
title  before  they  depart;  and  if  they  remain  in  the  missionary 
country  they  must  prove  that  they  have  the  means  for  their 
decent  support. 

Any  one  raised  to  sacred  orders  under  the  title  of  the  mis- 
sion who  gives  up  the  office  of  missionary  loses  his  title  and 
must  seek  another.  If  he  wfishes  to  devote  himself  to  the  service 
of  another  mission,  to  obtain  the  title  from  this  mission  it  will  be 
necessary  to  have  recourse  to  the  Holy  See.  The  privilege  of 
ordaining  under  this  title  given  the  prelate  of  this  mission  does 
not  avail  for  the  case  of  adopting  a missionary  priest  from , 
another  mission. 

The  Oi'dinaries  of  missions  are  exhorted  to  avail  themselves  of 
the  services  of  those  having  other  titles,  in  accordance  with  the 
laws;  nor  can  they  compel  them  to  take  the  title  of  the  mission. 
In  fact  the  congregation  exhorts  the  Ordinaries  to  introduce  as  far 
as  possible  the  other  lawful  titles  for  ordination.. 

Undoubtedly  the  Sacred  Congregation  wishes  to  relieve  itself 
of  the  burden  j)laced  upon  it  by  this  title  of  mission,  which  is  un- 
der its  sj^ecial  supervision  and  imposes  upon  it  responsibilities 
toward  the  priests  ordained  under  it. 

As  long  as  the  bishops  use  this  extraordinary  title  they  must  be 
prepared  for  the  exercise  of  the  Sacred  Congregation’s  ordinary 
right  to  inquire  directly  into  the  ca^e  of  each  priest  whose  title 
or  right  to  maintenance  derived  therefrom  is  in  any  way  touched. 
If  the  other  titles  were  substituted  the  Sacred  Congregation  Avould 


22 


consider  itself  called  uj)on  to  interfere  in  those  cases  onl}^  where  a 
formal  appeal  is  lodged  against  an  alleged  arbitraiy  act  of  a 
bishop. 

This  certainly  has  the  advantage  in  behalf  of  the  priest  that  he 
has  always  a right  if  aggrieved  to  have  recource  to  the  Sacred 
Congregation,  which  is  guided  by  the  fixed  rules  and  traditions 
of  the  church  and  free  from  any  personal  whim  or  even  from  any 
private  peculiar  standard  of  right  and  wrong. 

Even  after  a trial  by  the  bishop’s  court,  though  suspension  and 
other  disciplinary  corrections  and  even  removal  from  office  may 
be  inflicted,  the  privation  of  the  title  of  the  mission  can  only  take 
effect  by  consent  of  the  Propaganda.  Yet  as  the  very  obligation 
of  maintenance  of  missionaries  springs  from  their  working  for  the 
welfare  of  souls,  or  in  the  words  of  the  Propaganda,  “they  who  are 
ordained  under  the  title  of  the  mission  obtain  their  support  from 
the  Apostolic  ministry  in  the  mission  to  which  they  are  attached,” 
the  Propaganda  in  1879  in  its  supjflement  to  its  Instruction  of  1878 
declares  that  it  had  not  intended  in  any  way  to  affect  or  weaken 
the  juridical  effects  of  Decree  77  of  the  second  Plenary  Council 
of  Baltimore,  which  enacted  that  all  who  having  by  their  own 
fault  rendered  themselves  unfit  for  the  work  of  the  ministry  and 
were  by  the  bishop’s  sentence  deprived  of  its  exercise  could  have 
no  just  claim  to  demand  their  support  from  the  bishop);  saving 
of  course  the  right  of  appeal  to  the  Metropolitan  and  to  the  Holy 
See. 

This  would  not  however  be  the  case  if  by  illness  or  other  cause 
without  moral  fault  the  joriest  were  incapacitated  from  the  exer- 
cise of  the  ministiy.  The  title  of  the  mission  burdens  the  diocese 
or  apostolic  vicariate  with  the  obligation  of  his  maintenance. 
The  title  gives  birth  to  the  two-fold  obligation — on  the  part  of 
the  priest  to  serve  the  mission  for  life,  and  on  the  part  of  the 
mission  to  secure  him  for  life  a proper  maintenance. 


CHAPTER  V. 

The  title  of  mission  prevents  entrance  to  any  regular  community  without  the 
consent  of  the  Holy  See.  This  title  sometimes  is  a source  of  greater  perfec- 
tion than  the  profession  in  a religious  order.  Comparison  between  the 
obedience  of  a secular  priest  and  that  of  a member  of  a religious  com- 
munity. Voluntary  transfers  from  one  diocese  to  another  much  facilitated 
by  recent  concessions  of  the  Propaganda. 

The  title  of  ordination  gives  permanent  security  of  maintenance 
to  all  priests  whetner  they  have  the  care  of  souls  or  not,  whether 
they  are  rectors  of  defined  districts  and  congregations,  chaplains 


23 


of  institutions  or  assistants  whose  clut}'  it  may  l)e  to  aid  others, 
wherever  their  services  are  required.  In  this  country  the  title 
of  mission  makes  this  adequate  provision  for  all  the  priests 
belonging  to  the  prefecture  apostolic,  vicariate  aimstolic  or  dio- 
cese, and  the  first  duty  of  the  Ordinary,  who  is  the  bishop,  is 
toward  the  clergy,  that  while  they  devote  themselves  to  the  care 
of  souls,  they  may  obtain  a decent  and  honorable  maintenance. 
If  at  any  time  this  is  unattainable  where  the  priest  is  located,  he 
has  a just  claim  upon  the  bishop  for  such  arrangements  as  will 
enable  him  to  attain  what  is  his  due. 

“ They  who  are  ordained  under  the  title  of  mission  obtain  their 
support  from  the  Apostolical  Ministry  to  which  they  are  attached.” 
This  title  therefore  carries  with  it  the  obligation  of  attending  to 
the  care  of  souls,  which  is  not  necessarily  attached  to  the  other 
titles.  Thus  there  are  communities  of  priests  having  for  their 
title  that  of  “Poverty,”  supported  by  alms,  whose  object  is  a life 
of  contemplation  and  self-sanctification,  who  are  not  called  upon 
for  the  exercise  of  any  duties  connected  with  the  charge  of  the 
people.  Many  secular  priests  ordained  under  the  title  of  j)atri- 
mony  or  benefice  never  hear  confessions  nor  preach,  nor  are  called 
upon  for  any  Avork  directly  in  behalf  of  the  souls  of  others. 

There  is  undoubtedly  more  vagueness  in  the  title  of  mission 
and  less  stability  of  maintenance,  than  is  attached  to  the  other 
titles,  yet  the  Propaganda  when  granting  the  use  of  this  title 
emphasizes  the  importance  of  making  this  stability  sufficient  to 
take  away  from  the  priest  all  excuse  for  greed  or  unworthy 
begging,  or  anything  which  may  be  improper  in  a clergyman  or 
has  the  tendency  to  lower  the  clerical  order  in  the  eyes  of  the 
people.  But  a reasonable  stability  is  given  by  burdening  the 
whole  diocese,  or  vicariate,  or  i)refecture  apostolic  with  the  main- 
tenance of  the  priest,  and  the  obligation  deA^olves  upon  the  bishop 
or  ordinary  to  provide  for  the  wants  of  any  priest  who  has  spent 
himself  in  the  ministry,  nor  can  the  bishop  condition  this  support 
upon  any  unreasonable  restrictions,  or  such  as  do  not  really 
sjmng  from  the  care  of  souls.  Nor  can  this  support  be  denied 
any  one  who  has  not  been  legally,  that  is  by  the  proper  forms  of 
law,  deprived  of  his  title.  There  is  no  greater  intensity  of 
obedience  arising  from  the  title  of  mission  than  from  the  promise 
of  obedience  given  at  ordination,  and  to  which  the  Propaganda 
prevented  the  Fathers  of  the  First  Council  of  Baltimore  from 
attaching  more  importance  than  was  allowed  by  Benedict  XIY. 

In  fact,  one  of  the  main  purports  of  the  title  of  the  mission 
was  in  accord  with  the  moderation  attributed  to  that  obedience 


24 


as  explained  by  Benedict  XIV.,  viz:  that  a j^riest  should  not 
leave  a charge  to  which  he  was  assigned  without  permission  from 
the  Ordinary.  Not  a few  ordained  as  apostolic  missionaries, 
because  of  the  vagueness  of  the  title,  thought  themselves  free  to 
go  from  one  bishop  to  another  without  giving  proper  notice,  to 
offer  their  services  where  they  thought  there  was  greatest  need, 
or  deemed  themselves  most  welcome ; hence  the  Propaganda 
required  that  they  take  an  oath  to  work  for  life  in  that  special 
diocese  or  vicariate  for  which  they  were  ordained,  or  else  in  that 
to  which  they  would  afterwards  with  their  own  consent  be  assigned 
by  the  Propaganda.  The  Propaganda  never  claimed  the  right 
under  this  oath  of  sending  any  one  from  one  diocese  to  another, 
nor  does  the  Holy  See  ever  claim  the  right  of  sending  priests 
from  one  diocese  to  another,  unless  this  is  expressly  stipulated  at 
some  time  before  they  have  bound  themselves  to  the  Ecclesiastical 
state  for  life.  Even  in  religious  Orders  where  there  is  the  solemn 
vow  of  obedience,  no  member  of  the  community  may  be  sent 
without  his  consent  away  from  the  special  district  or  province  to 
which  he  belongs  when  he  takes  the  vow,  unless  he  adds  a special 
j^roviso  of  his  willingness  to  go  wherever  his  superiors  may 
choose  to  send  him.  The  title  of  mission  therefore  is  to  prevent 
a priest  from  going  from  one  vicariate  apostolic  or  diocese  to 
another.  In  that  vicariate  or  diocese  it  binds  him  to  devote  him- 
self for  life  to  the  care  of  souls,  and  this  obligation  is  imposed 
because  the  diocese  or  vicariate  apostolic  is  subjected  to  the  bur- 
den of  providing  for  his  temporal  wants.  This  title  is  perpetual 
in  its  effects  or  permanent  for  life,  wherein  the  title  of  mission 
does  not  differ  from  any  of  the  other  titles  of  ordination.  With 
the  consent  of  the  Propaganda  a substitute  title  may  be  obtained. 
Thus  one  from  Europe  who  has  given  many  years  of  his  life  to 
the  missions  may  be  authorized  to  return  to  his  native  soil,  where 
he  may  obtain  the  title  of  benefice  or  even  of  patrimony,  and  un- 
doubtedly the  same  privilege  would  be  accorded  to  any  native  of 
this  country  if  he  were  able  to  present  the  title  of  patrimony  as  a 
substitute.  The  Propaganda  has  repeatedly  warned  our  bishops 
not  to  decline  the  other  titles  accepted  by  the  Church.  Another 
may  be  permitted  to  enter  a religious  order  in  which  the  title  of 
“ common  table  ” or  of  “ poverty  ” is  the  regular  title.  Yet  the 
Propaganda  reserves  to  itself  the  right  of  directing  those  ordained 
under  the  title  of  the  mission  to  give  their  services  to  the  care  of 
souls,  even  if  they  have  been  permitted  to  take  the  solemn  vows 
in  any  Order. 

In  fact  the  oath  required  by  the  title  of  mission  had  for  its 


25 


main  purpose  the  remedy  of  an  evil  that  arose  to  the  great  detri- 
ment of  the  people.  Some  missionaries,  either  because  they 
found  their  temporal  maintenance  to  be  too  precarious  while 
depending  upon  their  own  individual  exertions  in  a restricted 
locality,  to  provide  shelter,  food  and  raiment  for  themselves, 
sought  the  protection  of  an  organized  religious  body  of  which  the 
members  could,  in  case  of  need,  be  relieved  by  funds  stored  else- 
where, and  hence  were  willing  to  make  even  the  solemn  jmofes- 
sion  of  the  “Yow  of  Poverty,”  which  at  any  rate  secured  for 
them  from  the  community,  the  necessaries  of  life  and  very  often 
luxuries  compared  with  the  meagre  results  of  their  own  indi- 
vidual exertions.  Others  being  in  missionary  fields  alone  at 
great  distances  from  the  consolations  of  the  spiritual  help  and 
direction  of  their  brethren  in  the  priesthood  were  alarmed  for 
their  own  salvation,  or  at  any  rate  they  dreaded  the  loss  of  greater 
sanctification  resulting  from  their  state  of  isolation,  and  yearned 
to  become  members  of  a religious  community  whose  members 
need  not  be  limited  to  any  one  particular  field  for  too  prolonged 
a period  of  spiritual  destitution,  but  were  habitually  recalled  at 
intervals  to  partake  of  the  spiritual  as  well  as  temporal  inter- 
course with  their  brethren.  The  general  discipline  of  the  Church 
allows  priests  ordinarily  to  renounce  even  grave  and  important 
charges  after  due  notice  to,  but  even  without  the  consent  of  the 
bishop,  that  they  might  enter  a religious  community  to  devote 
themselves  to  a more  secure  way  of  preserving  themselves  from 
the  temptations  and  cares  to  which  contact  with  the  world  might 
render  them  liable  ; or  also  to  obtain  for  themselves  better  oppor- 
tunities of  prayer,  of  direction  and  all  other  things  conducive  to 
a higher  state  of  individual  sanctification. 

The  Propaganda  had  a long  struggle  to  do  away-  with  this 
privilege  even  on  the  part  of  missionaries,  and  found  itself  com- 
pelled to  invoke  the  aid  of  the  Supreme  Pontiff  to  remind  them 
that  they  were  procuring  their  own  greater  sanctification  by  the 
sacrifices  that  they  were  making  in  behalf  of  souls,  whilst  the 
Lord  would  provide  a supply  of  extraordinary  graces  for  their 
isolated  condition.  Whilst  not  attaching  to  the  oath  an  absolute 
engagement  not  to  enter  a regular  order,  the  Propaganda  under- 
took to  require  an  examination  of  the  motives  that  prompted  the 
missionaries  to  abandon  their  post  for  the  religious  state.  If  the 
temporal  needs  were  at  the  bottom  of  the  desire  for  change.  It 
proposed  to  provide  for  their  maintenance.  Even  if  It  allowed 
the  entrance  into  some  religious  order.  It  required  ordinarily 


26 


that  an  order  should  be  selected  of  which  the  care  of  souls  was  a 
primary  object. 

The  direction  of  the  bishop  or  vicar  apostolic,  of  which  the 
oath  makes  mention,  as  binding  the  ordained  under  the  title  of 
the  mission,  extends  to  all  those  things  that  are  connected  with 
the  care  of  souls  ; and  hence  the  obedience  of  a missionary  priest 
is  more  extensive  in  its  scoj^e  than  the  promise  of  obedience  made 
by  every  j^riest  at  his  ordination  to  his  bishop.  As  we  have  seen, 
this  general  promise  of  obedience  only  subjects  the  priests  to  the 
general  laws  of  the  clerical  state  made  by  the  church,  as  devel- 
oped in  the  diocesan  statutes,  whilst  he  that  receives  a charge  of 
souls  is  bound  to  observe  all  the  laws  reasonably  connected 
with  the  welfare  of  those  under  his  charge.  As  the  strict  obliga- 
tion of  obedience  of  a religious  according  to  Benedict  XIV.  extends 
and  is  limited  to  those  things  which  are  reasonably  deducible 
from  or  justly  reducible  to  the  rule  of  his  Order  so  also  a priest 
in  care  of  souls  has  special  obligations  derived  from  his  special 
office.  Yet  the  obedience  of  a secular  priest  is  not  of  the  same 
kind  or  at  all  as  extensive  as  that  required  of  a member  of  a reg- 
ular community  (a  community  under  rule).  It  does  not  affect  his 
daily  routine  of  life,  nor  suppose  curtailment  of  personal  liberty, 
where  this  does  not  really  interfere  with  the  welfare  of  souls. 
Anything  that  would  entail  neglect  of  one’s  duty  may  reasonably 
be  forbidden.  But  beyond  this  a secular  priest  is  free  to  give  his 
time  to  legitimate  intellectual  work  or  lawful  amusement  of  his 
own  choosing.  He  cannot  be  obliged  to  follow  monastic  regula- 
tions or  constant  personal  direction,  concerning  which  he  had  no 
anticij)ation  and  made  no  engagement  when  ordained. 

It  is  well  also  to  call  attention  to  the  new  provisions  made  at 
the  instance  or  with  the  consent  of  the  Propaganda  by  the  Third 
Plenary  Council  .of  Baltimore  concerning  this  title  of  mission. 
The  voluntary  change  from  one  diocese  to  another  is  much  facili- 
tated, especially  within  the  ecclesiastical  province  to  which  he 
belongs.  An  ecclesiastical  province  is  formed  of  a certain  number 
of  dioceses,  whose  bishops  are  called  suffragans  of  an  archbishop. 
Thus  the  States  of  New  York  and  New  Jersey  are  one  ecclesiastical 
l^rovince,  of  which  the  Archbishop  of  New  York  is  the  Metroj^oli- 
tan,  or  holder  of  the  chief  See.  The  New  England  States  are 
another  ecclesiastical  province,  having  Boston  for  the  Metropolis. 

The  Propaganda  has  relaxed  the  restriction  of  the  oath  imposing 
the  obligation  for  life  to  any  one  diocese,  so  as  to  allow  a priest, 
with  the  consent  of  his  bishop,  to  make  arrangements  with  another 
bishop  within  the  same  province  to  become  attached  to  the  latter’s 


27 


diocese,  to  whom  the  same  subordination  is  to  be  given,  and  who 
undertakes  the  same  burdens  in  behalf  of  the  i:)riest,  to  which  the 
former  bishop  was  subject,  and  all  this  can  be  done  without  the 
necessity  of  having  recourse  to  the  Propaganda.  This  is  a great 
convenience  to  the  priest  who  desires  a change  and  does  not  often 
know  how  to  go  about  getting  the  permission  of  the  Proi)aganda, 
a far  off  Ordinary  Superior  with  whom,  however,  priests  are  not 
in  easy  correspondence.  It  is  also  of  advantage  to  the  bishops 
who  thus  are  relieved  of  the  necessity  of  waiting  for  a long  period 
for  instructions  for  their  guidance  in  the  minor  minutim  of  the 
government  of  their  dioceses. 

If  the  change  is  to  be  made  outside  of  the  ecclesiastical  pro- 
vince to  which  the  priest  belongs,  he  must  apply  to  a bishop, 
who  is  exj^ected  to  require  a three,  or  even  may  exact  a five  years’ 
probation  before  admitting  him  as  one  of  the  diocesan  clergy.  If 
the  aj^plicant  had  been  ordained  under  the  title  of  Mission  the 
Propaganda  must  be  asked  by  the  bishop  ado2:)ting  him  to  release 
him  from  his  obligation  to  his  former  diocese,  and  then  the  bishop 
is  to  administer  to  him  the  oath  binding  him  in  the  same  way  to 
the  diocese  into  which  he  is  permanently  taken,  of  which  fact  the 
former  bishop  is  to  be  notified. 

If  there  should  be  anj^  neglect  or  omission  upon  the  part  of  the 
bishop  to  comply  with  his  j^art  of  these  requirements,  the  priest 
will  not  suffer,  because  if  he  has  gone  through  the  three  years’, 
or  when  properly  notified  of  its  requirement  through  the  five 
years’  j^robation,  he  will  be  considered  b}'  the  law  as  incorporated 
into  the  new  diocese,  in  spite  of  the  omission  of  any  technicality. 
Greater  difficulties  are  put  in  the  way  of  those  who  belong  to 
a regular  community  with  the  obligation  of  perpetual  vows, 
and  who  wish  to  obtain  23ermission  to  join  the  ranks  of  the 
secular  clergy.  The  bishops  are  expected  to  come  to  a private 
understanding  with  the  superiors  of  the  orders  before  admitting 
them  to  the  three  or  five  years’  probation. 

The  Church,  in  the  true  spirit  of  equity  and  charity  that  per- 
meates her  laws,  is  most  anxious  to  see  that  not  only  the  lambs 
of  the  flock  but  the  sheej)  and  the  inferior  and  higher  grades  of 
shepherds  are  all  properly  sheltered  and  cared  for.  Hence  her 
priests  are  or  should  be  secured  for  life  from  all  necessity  of  beg- 
ging for  their  personal  supj^ort  and  of  sordid  greed  or  of  taking- 
part  in  manual  labor,  and  the  material  business  of  life  in  order 
that  they  may  properly  devote  themselves  to  the  duties  of  religion 
and  of  charity.  Even  where  human  frailty  may  have  allowed  to 
be  broken  some  of  the  vessels,  where  precious  treasures  have  been 


28 


placed  by  the  Good  Shepherd,  His  church  is  always  willing  to 
gather  up  and  unite  the  fragments,  to  make  anew  good  use  of 
them  as  a source  of  life  to  souls  famishing  for  the  bread  that 
came  down  from  heaven. 


VI. 

Gradual  development  of  Canon  Law  after  the  first  provincial  Council  of  Balti- 
more. This  Council  gives  attention  to  the  proj)er  formation  of  parishes, 
and  to  the  relative  positions  of  priests.  Yet  the  rectors’  direction  of  the 
assistants  is  in  relation  to  the  parish  duties. 

Canon  De  Angelis  (Lib.  1,  Tit.  XI,  page  234)  tells  us  that  the 
question  of  the  title  of  ordination  was  one  of  the  serious  matters 
prepared  to  be  submitted  to  the  Vatican  Council  for  new  adjust- 
ment and  adaptation  to  the  circumstances  of  the  times.  Certainly 
throughout  the  Catholic  world  to-day  the  fewness  of  benefices, 
consequent  upon  the  confiscation  of  church  property  by  so-called 
Catholic  governments,  and  the  dearth  of  patrimony  on  the  part 
of  the  great  majority  of  those  promoted  to  sacred  orders  have 
seriously  upset  the  former  arrangements  made  by  the  Church 
concerning  this  title  of  ordination.  To  supply  the  spiritual  needs 
of  the  faithful,  and  to  secure  for  them  the  ministration  of  a suffi- 
cient number  of  priests,  it  has  been  found  necessary  to  undo  the 
stringency  of  the  regulations  of  the  Council  of  Trent,  and  to  show 
a great  leaning  to  a return  to  the  primitive  practice  in  the  Church 
of  making  the  Apostolic  Ministry,  or  the  service  of  a special 
church  the  usual  title. 

In  Catholic  countries  the  times  have  brought  about  an  enlarge- 
ment of  Church  legislation  in  this  regard.  In  the-  United  States 
we  are  still  in  the  formative  process  tending  as  fast  as  the  Holy 
See  can  sefely  induce  us,  and  as  our  bishops’  dread  of  stringent 
declarations  of  limitations  of  their  authority  will  permit,  toward 
the  development  of  the  principles  of  canon  law,  whose  germs  the 
Propaganda  has  insisted  upon  planting  in  the  legislation  of  the 
Provincial  and  Plenary  Councils.  These  are  the  only  legislative 
bodies  that  obtain  any  recognition  from  the  Holy  See.  Diocesan 
synods  are  very  rarely  submitted  to  the  judgment  of  the  supreme 
authority,  and  in  hardly  any  case  are  honored  by  its  approval. 
Legislative  authority  is  recognized  in  them  for  the  special  diocese 
for  which  their  statutes  are  framed,  but  are  not  in  any  way  a 
guide  for  the  conduct  of  others.  They  very  often  contain  the 
special  standards  of  right  and  wrong  of  an  individual  whose  suc- 
cessor is  as  likely  to  eliminate  as  to  endorse  them,  or  at  least  to 
let  them  become  dead  letters  if  they  are  not  actually  expunged 


29 


from  the  code.  This  unfortunately  is  one  of  the  great  evils  of 
too  much  law-making,  and  of  the  establishment  of  too  many  regu- 
lations. They  become,  in  the  course  of  time,  a snare  to  the  feet 
of  the  governed,  and  where  many  laws  and  regulations  are  allowed 
to  go  into  desuetude,  the  famous  epithet  of  “innocuous”  cannot  be 
always  applied  to  them,  if  their  existence  on  the  statute  book  is 
used  as  the  crook  is  used  by  the  shepherd  to  trip  or  hold  fast 
some  unwary  lamb,  who  in  j^erfect  innocence  is  gambolling  too 
friskily  near  by,  whilst  the  shepherd  is  peevish  from  indigestion 
or  sleej^lessness,  or  from  other  cause. 

Whenever  there  should  be  diocesan  statutes  that  conflict  with 
the  welfare  of  souls,  or  imposing  unreasonable  burdens  upon  the 
clergy,  or  inimical  to  the  spirit  of  the  general  laws  and  customs 
of  the  church  it  has  always  been  considered  to  be  within  the  right 
of  the  diocesan  clergy  to  offer  resj^ectful  remonstrance  to  the 
bishop,  and  if  he  refuses  to  take  their  objections  into  considera- 
tion, to  have  recourse  to  the  Supreme  Authority  to  seek  their 
amendment.  There  can  be  no  want  of  respect  charged  against 
any  subject  who  aj^peals  to  the  common  superior  for  a judgment 
1123011  the  acts  of  the  intermediate  authority.  Any  objection  on 
the  2)art  of  the  latter  to  admit  of  such  a recourse  or  ap23eal,  or  to 
submit  to  a higher  authority’s  decision  would  make  manifest  that 
the  law  or  regulation  or  decision  in  question  was  the  offs23ring  of 
23ersonal  views,  and  not  the  outcome  of  the  wish  to  i^rocure  the 
general  welfare,  from  which  desire  alone  arises  the  value  of  any 
regulation  or  law.  The  very  essence  of  a law  is  that  it  be  made 
for  the  general  welfare  ; and  no  law  made  otherwise  has  any 
binding  force  in  conscience. 

Our  sco23e,  however,  leads  us  not  to  sxiecial  attention  to 
diocesan  regulations  where  the  suxireme  sanction  is  not  suxix^osed 
to  be  even  tacitly  given  them,  even  though  as  a compliment  they 
might  be  forwarded  to  the  Proxiaganda.  They  are  not  authori- 
tatively submitted  and  much  less  authoritatively  accepted,  though 
at  times  a x^olite  note  of  receipt  and  a general  exx3ression  of  x^raise 
may  be  given  for  the  x^astoral  solicitude  and  wisdom  disx3layed  in 
the  holding  of  a synod. 

Our  scox3e  leads  us  to  give  more  special  attention  to  the  Provin- 
cial and  Plenary  Councils  whose  decrees  are  required  to  be  sent  to 
the  Propaganda,  whidi  eliminates  what  it  clearly  x)erceives  to  be 
0X3X30sed  to  the  general  spirit  of  the  laws  and  x^i’actices  of  the 
Church,  as  we  have  seen  it  do  in  regaiyl  to  the  imx3rox3er  extension 
by  the  first  Council  of  Baltimore  of  the  obligation  of  the  x^romise 
of  obedience  made  by  the  x^i'iest  to  the  bishox)  at  ordination.  This 


30 


first  Council  of  Baltimore  of  1829  had  before  it  the  difficult  task 
of  making  the  first  decrees  for  the  bringing  into  line  with  the 
spirit  of  the  Universal  Church  the  discipline  of  this  missionary 
country  entrusted  to  its  charge.  We  have  seen  the  bishops  state 
that  they  only  knew  of  one  properly  called  parish  and  parish 
priest  in  the  whole  country,  and  “ the  happy  land  ” of  this  privil- 
eged one  was  New  Orleans.  The  fourth  decree  of  this  Council 
plants  the  germ  qf  the  remedy  for  this  want  of  the  full  organiza- 
tion which  the  Holy  See  has  always  been  most  anxious  to  promote 
in  the  Church  of  the  United  States  as  elsewhere. 

“ As  it  is  repugnant  to  the  laws  and  custom  of  the  Church  and 
to  the  good  government  of  souls  to  grant  to  several  priests  to- 
gether equally  the  pastoral  authority  to  rule  the  same  church  or 
district,  and  as  great  discord  and  confusion  have  arisen  in  this 
province  from  the  claim  of  several  priests  to  exercise  equallj^  (ej^- 
aequo)  this  pastoral  authority  without  any  dependence  upon  one 
another,  we  decree  and  determine  that  each  prelate  must  at  his 
earliest  convenience  designate  in  the  places  where  there  are  sev- 
eral priests,  one  as  pastor  of  each  place,  to  whom  one  or  more  as- 
sistants may  be  assigned  as  will  seem  advisable  to  the  prelate. 
In  the  places  moreover  in  which  no  such  special  disposition  shall 
have  been  made  by  the  prelate,  we  decree  that  the  priest,  who  after 
this  decree  shall  have  been  deputed  by  the  prelate  to  fulfill  this 
office,  shall  be  considered  the  pastor  ; and  the  other  priests  after- 
wards deputed  are  to  be  held  as  assistants,  until  otherwise  decreed 
by  the  prelate !” 

The  extent  of  the  abuse  that  had  arisen  may  be  surmised  from 
the  peremptory  fashion  of  giving  no  room  for  the  temporizing  of 
any  of  the  bishops  that  took  part  in  the  council,  and  of  passing 
over  their  heads  to  put  into  execution,  the  law  made  by  the  coun- 
cil. 

It  is  clear  that  for  the  proper  direction  of  the  Church  services, 
the  timely  administration  of  the  sacraments,  the  economical  care 
of  the  Church  temporalities,  the  peace  of  the  priestly  household, 
one  should  be  held  responsible  for  the  good  order,  lest  there 
should  be  introduced  the  Garden-of-Eden  fashion  of  throwing  the 
blame  on  some  one,  or  two  or  more,  for  the  omission  of  proper 
duties.  The  enforcement  of  the  pastor’s  directive  authority  in 
what  concerns  the  welfare  of  the  parish  and  of  souls,  has  been 
found  to  work  admirably  for  the  peo23le.  Yet  the  bishops  did  not 
intend,  nor  would  it  be  wise,  to  confer  upon  the  pastots  legisla- 
tive authority  to  make  regulations  for  the  personal  direction  of 
the  assistant  priests,  whose  duties  are  sufficiently  defined  by  their 


31 


clerical  state,  their  care  of  sonls  and  the  general  church  and  spe- 
cial diocesan  laws. 

The  semi-conventual  life  led  by  the  priests  in  the  large  cities  of 
this  country,  where  pastor  and  assistants  live  together  in  the  same 
house  and  eat  at  the  same  table  is  a source  of  edification,  and  en- 
tails a certain  reasonable  direction  on  the  part  of  the  pastor,  if  he 
has  found  any  individual  abuse  that  needs  correction  for  the 
avoiding  of  scandal.  Yet  the  attempt  to  impose  peculiar  stand- 
* ards  of  morality,  or  special  forms  of  priestly  devotion  would  but 
tend  to  make  men  restive,  and  quickly  lead  them  to  resent  inter- 
ference with  their  personal  right.  Even  if  a pastor  should  take 
offence  at  smoking,  or  should  become  a strict  prohibitionist  of  any 
kind  of  wine,  even  in  moderation  for  the  stomach’s  sake,  or  think 
that  his  neighbor  ought  to  rise  or  go  to  bed  at  his  special  hour, 
and  be  within  doors  when  the  pastor  finds  it  convenient  not  to  be 
out,  the  bishops  did  not  and  should  not  attempt  to  curtail  the  as- 
sistants personal  rights,  but  only  to  subject  them  to  the  control 
and  direction  of  the  pastor,  in  whatever  concerns  the  welfare  and 
edification  of  the  people,  in  the  promotion  of  whose  spiritual  con- 
cerns they  are  called  to  aid  the  pastor.  The  assistant’s  reputation 
must  become  an  object  of  deep  concern  to  the  pastor,  who  is  oblig- 
ed to  take  no  action  that  would  cast  unjust  reflection  upon,  or 
show  unkindness  to  him,  especially  before  the  flock.  And  the 
Propaganda’s  serious  admonition  to  the  bishops  concerned,  the 
assistants  as  well  as  pastors,  viz  : that  “ they  are  to  be  careful 
not  to  transfer  priests  against  their  will  from  one  place  to  another 
without  a grievous  and  reasonable  cause.” 


CHAPTER  VII. 

Eelations  of  assistants  to  the  pastors.  Controversies  on  purely  ecclesiastical 
matter  between  clerics  or  religious  not  to  be  brought  before  the  civil  court. 
No  such  restriction  imposed  for  purely  secular  matters.  Eome  has  made 
concordats  with  Catholic  governments  allowing  ecclesiastics  to  summon 
and  be  summoned  before  the  civil  courts  on  secular  matters.  Eome’s  wis- 
dom-in yielding  to  the  needs  of  the  times. 

The  determination  of  the  bishops,  under  guidance  of  the  Pro- 
paganda, to  gradually  enforce  the  division  of  the  dioceses  into 
various  fixed  districts  with  certain  limits,  or  parishes  under  one 
responsible  rector  was  manifest  in  the  fourth  decree  of  the  first 
Council  of  Baltimore  of  1829.  The  enforcement  of  the  authority 
of  the  pastor  with  regard  to  the  administration  of  the  parish,  was 
further  developed  in  the  second  decree  of  the  fourth  Council  of 
Baltimore  held  in  1840.  Whilst  not  making  any  innovation  about 


32 


the  authority  of  bishops,  as  explained  in  the  first  decree  of  the 
first  Provincial  Council  of  Baltimore,  with  regard  to  the  appoint- 
ment and  removal  of  pastors,  and  wishing  to  add  strength  to  the 
fourth  canon  in  its  determination  of  a single  pastor  for  each  con- 
gregation, we  declare  that  this  pastor  alone  has  the  right  of  ad- 
ministration of  the  church  and  congregation,  and  that  it  is  not 
lawful  for  the  other  priests  sent  to  assist  him  in  the  ministry,  to 
undertake  anything  without  his  wish.”  Upon  the  pastor’s  shoul-  ^ 
ders  is  the  serious  responsibility  of  seeing  that  the  part  of  Christ’s 
flock  assigned  to  his  charge,  be  proj^erly  provided  with  spiritual 
pastures  necessary  for  their  sj^iritual  welfare.  Aid  is  furnished 
him  by  other  priests  however,  under  his  direction.  It  is  his  privi- 
lege and  duty  to  see  that  what  he  cannot  do  personally,  thej"  faith- 
fully perform.  The  administration  of  the  sacraments  of  Baptism, 
Holy  Eucharist,  Matrimony  and  .Extreme  Unction  are  apart  of  the 
assistant’s  ordinary  functions,  no  less  than  the  instruction  of  the 
people — ^adults  or  children.  Yet  the  rector  is  indued  with  the 
authority  of  direction  in  all  these  and  similar  exercises  of  the  min- 
istry in  behalf  of  the  people,  so  that  the  assistants  maj^  not  under- 
take any  of  them  without  the  ajDproval  of  the  pastor.  The  bishops 
wisely  omitted  the  mention  of  any  interference  with  the  mere  per- 
sonal direction  of  the  assistant  priests.  Yet  knowing  that  there 
might  arise  a cause  of  disagreement  from  a spirit  of  greed  on  the 
part  of  either  pastors  or  assistants,  the  fathers  in  the  third  decree 
enact:  “Lest  greed  should  infect  the  priestly  ranks,  and  discord 
arise  between  the  priests  dwelling  together,  on  account  of  the  off- 
erings customarily  made  on  occasions  of  the  administration  of  the 
Sacraments  of  Baptism  and  Matrimony,  we  warn  the  bishops  either 
in  a Diocesan  Synod  or  otherwise,  if  they  should  so  determine  in 
the  Lord,  after  consultation  with  the  clergy,  to  fix  a just  rule  of 
distribution,  not  omiting  a consideration  of  the  heavier  burdens 
and  the  greater  authority  of  the  pastor.” 

In  the  third  Provincial  Council  of  Baltimore,  held  in  1837,  a 
partial  jorovision  had  been  made,  or  rather  suggested,  for  the  set- 
tlement of  controversies  among  priests  or  religious  persons,  by  a 
recourse  to  the  bishop,  whose  judgment  should  be  mature.  This 
is  the  wording  of  the  decree : 

“As  serious  scandal  is  given  the  faithful,  with  discredit  to  the 
Ecclesiastical  body,  if  Ecclesiastical  cases  are  brought  before  the 
civil  courts,  we  exhort  all  whom  it  may  concern,  to  amicably  set- 
tle questions  about  Ecclesiastical  things  or  persons,  or  at  least  to 
submit  them  to  the  bishop’s  decision.  If  any  Ecclesiastical  per- 
son or  member  of  a religious  body,  male  or  female,  should  cite  an 


33 


Ecclesiastic  or  a religious  before  a civil  court,  on  a question  of  a 
purely  Ecclesiastical  character,  he  should  know  that  he  falls  un- 
der the  censures  decreed  by  the  Canon  Law.” 

In  this  matter  we  have  a proof  of  the  great  experience  and  wis- 
dom of  the  Propaganda.  The  bishops  had  at  first  so  worded  their 
decree  as  to  lay  down  that  the  mere  citation  of  an  ecclesiastic  or  a 
religious  by  another  such  person  before  a civil  court  Avould  sub- 
ject the  latter  to  the  penalties  of  Canon  law.  The  Propaganda, 
however,  reminded  the  bishops  of  the  serious  modifications  that 
are  required  in  the  old  customs  or  laws  of  the  Church  by  the  cir- 
cumstances of  modern  times,  and  while  hoping  and  exhorting  a 
settlement  of  all  such  controversies  either  privately  or  before  the 
bishop’s  tribunal,  the  Propaganda  would  not  allow  it  to  be  under- 
stood that  these  penalties  were  to  be  incurred  unless  the  question 
were  so  purely  and  strictly  of  an  ecclesiastical  character  as  to 
preclude  all  right  of  the  civil '.court  to  pass  judgment  on  the  mat- 
ter. Questions  of  money,  of  the  interpretation  of  wills^  of  the 
right  and  amount  of  interest,  arehnainly  purely  secular  and  belong 
to  the  civil  domain  and  the  civil  courts,  and  to-day  the  Church 
universally  on  such  and  analogous  matters  permits  and  sanctions 
recourse  even  by  ecclesiastics,  to  the  civil  tribunals  against  other 
ecclesiastics  in  high  or  low’  station,  especially  where  the  ecclesiasti- 
cal courts  are  unw’illing  to] fairly  undertake  the  consideration  of 
them  or  are  unable  to  properly  enforce  their  decisions  when  un- 
dertaken. The  Holy  See  wishes  in  all  such  cases  that  the  proper 
precautions  be  taken  to  avoid  'disrespect  and  to  prevent  wanton 
suits  from  often  being  brought  by  ecclesiastics  against  ecclesiastics, 
and  hence  to-day  that  one  ecclesiastic  may  bring  another  before  a 
civil  court  in  this  country  it  is  necessary  to  apply  to  his  bishop  or 
superior  to  obtain  if  possible  a proper  settlement.  If  the  bishop 
neglects  or  does  not  wish  to  try  the  case,  or  if  it  is  clear  that  no 
settlement  made  by  the  bishop  could  be  enforced,  the  bishop  is 
not  at  liberty  to  prevent  recourse  to  the  Civil  Court.  If  a priest 
had  a case  against  a bishop,  recourse  is  now  to  be  had  to  the  Holy 
See  for  permission  to  sue,  on  account  of  the  greater  fear  of  scan- 
dal and  the  greater  precautions  to  be  used  to  preserve  the  due 
respect  to  the  Episcopal  order.  Yet  the  Holy  See  has  over  and 
over  again  recognized  that  this  permission  is  to  be  granted  tor 
the  safeguarding  of  the”,  temporal  rights  of  the  inferior  Ecclesi- 
astics, when  it  is  clear  that  only  through  a complete  knowledge 
of  the  civil  laws  of  a country  can  complete  justice  be  done,  and  when 
their  interpretation  and  execution'  are  avowedly  not  within 
the  domain  of  the  Church.  The  privileges  of  the  Ecclesiastical 


34 


Courts  formerly  so  fully  recognized  by  Civil  Governments  have 
now  dwindled  almost  into  insignificance,  and  hence  the  Church  is 
ordinarily  content  with  enforcing  her  control  only  over  those 
things  which  belong  to  her  by  divine  right.  We  see  this  accept- 
ance of  the  modifications  introduced  into  modern  society  in  the 
wording  of  the  Propaganda’s  emendation  of  the  third  Baltimore 
Council’s  decree,  (Collectio  Laccens,  Vol.  Ill,  page  56.)  ‘‘With 
regard  to  the  sixth  clause  in  which  there  is  mention  of  avoiding* 
the  bringing  of  Ecclesiastical  questions  before  the  Civil  Courts, 
the  Sacred  Congregation  decides  that  the  decree  should  be  modi- 
fied, and  if  a cleric  sues  another  cleric  before  a lay  judge,  espe- 
cially if  he  be  an  heretic,  upon  a matter  of  (the  italics  are 

the  Propaganda’s)  Ecclesiastical  right,  the  Council  says  truly  that 
any  one  so  acting  incurs  the  censures  enacted  in  the  law.  But  in 
mixed  cases  where  the  persons  may  be  Ecclesiastical,  but  the 
thing  about  which  there  is  question  may  be  temporal  or  of  one’s 
household,  the  Council  must  deal  more  leniently,  especially  in 
countries  in  which  the  Civil  Government  is  not  in  the  hands  of 
Catholics  and  where  unless  recourse  is  had  to  the  Civil  Courts 
there  is  not  the  means  or  the  power  of  enforcing  an  Ecclesiastical 
decision  for  the  guardianship  or  recovery  of  one’s  own.” 

To-day,  on  account  of  the  gradual  process  of  separation  of 
Church  and  State  even  in  Catholic  countries,  we  find  concordats 
accepted  by  the  Holy  See  whereby  while  strictly  ecclesiastical 
matters,  such  as  concern  faith,  the  sacraments,  morals,  sacred 
functions,  and  the  rights  connected  with  the  Sacred  Ministry  are 
reserved  to  the  ecclesiastical  tribunals,  it  is  permitted  that  the  civil 
cases  of  clerics  and  all  questions  of  the  property  and  temporal 
rights  of  churches,  even  benefices  and  other  ecclesiastical  founda- 
tions be  treated  before  the  civil  courts.  This  even  in  Catholic 
countries  where  the  privilege  of  the  Ecclesiastical  Court  (privi- 
legium  fori),  is  recognized!  The  circumstances  of  the  organization 
of  our  country  have  precluded  the  possibility  even  of  this  privi- 
lege ever  having  a footing  here  in  regard  to  matters  not  of  strict 
ecclesiastical  right.  An  instruction  of  the  Propaganda  of  May  17, 
1886,  gives  us  the  information  that  the  Sacred  Congregation  will 
not  accept  any  appeal  or  recourse  of  priests  who  should  bring 
before  lay  judges  a cleric,  whether  on  an  ecclesiastical  question 
or  otherwise,  without  the  permission  of  the  bishop  or  a bishop 
without  the  permission  of  the  Holy  See  unless  they  first  withdraw 
the  suit  from  the  civil  court.  The  bishops  are  permitted  to  exact 
this  withdrawal  even  by  the  infliction  of  penalties  and  censures- 
after  trial  (ferendse  sententise),  especially  by  suspension  from  the 


ministry,  with  the  care  to  use  the  proper  rules  prescribed  for 
such  sentences  and  where  the  case  is  serious  enough  to  call  for  it, 
as  they  must  decide  before  God.  But  if  the  permission  to  enter 
suit  be  asked  of  the  bishop,  he  will  never  refuse  permission  if  the 
parties  have  ineffectually  attempted  a settlement  before  him. 

By  a special  declaration  of  the  Propaganda  of  Sept.  6th,  the 
transfer  by  a cleric  of  a claim  to  a layman  for  the  purpose  of  evad- 
ing the  censures,  is  checked  by  the  requirement  of  the  consent  of 
the  bishop  to  such  transfer  if  made  for  the  purpose  of  the  suit. 
Yet  the  very  declaration  that  a bishop  cannot  refuse  the  consent, 
where  he  cannot  effect  a proper  settlement,  obviates  any  neces- 
sity of  an  attempt  to  evade  the  law,  which  is  couched  in  terms 
that  really  recognize  to-day  the  right  of  a cleric  to  cite  a cleric 
before  a civil  court,  in  matters  not  strictly  Ecclesiastical  whenever 
this  is  the  only  decisive  tribunal  with  the  power  to  enforce  its 
decision. 

One  of  the  most  prominent  canonists  to-day  in  Borne,  Canon 
Menghini,  writes  on  page  28  of  his  celebrated  opinion  on  Bev. 
John  Carmont’s  case  in  Scotland,  where  the  circumstances  are 
similar  to  ours: 

‘‘The  permission  in  question  is  merely  intended  to  safeguard  the 
respect  and  reverence  due  to  certain  persons,  and  need  be  asked 
only  when  it  can  be  obtained  conveniently,  successfully  and 
without  prejudice  to  one’s  rights.  Here  at  Borne,  as  elsewhere,  it 
is  most  readily  granted  when  the  contending  parties  cannot  agree 
among  themselves.” 

We  can  easily  realize  that  all  such  prescriptions  limiting  the 
liberty  acquired  in  this  country  by  immemorial  custom  and  pre- 
scription are  to  be  narrowed  to  their  strictest  meaning.  Thus  a 
clergyman  without  the  formality  of  asking  such  permission  might 
easily  sue  vgr.  the  trustees  of  Calvary  Cemetary  on  a question  of 
a right  of  burial,  or  of  limits  of  a plot,  even  though  the  Arch- 
bishop be  a member  of  the  board.  In  the  same  way  a priest  holding 
a mortgage  upon  church  property  need  not  use  such  formality 
of  asking  such  permission  to  sue  for  his  claim  a church  corporation 
even  though  there  should  be  one  or  three  or  more  clerical 
or  religious  persons  as  members  of  the  board.  The  church  cor- 
poration in  our  courts  has  but  a civil  entity,  and  it  would  be  false 
to  imagine  that  any  one  or  more  members  of  it,  whoever  they 
may  be,  can  change  the  entity  accepted  by  the  Church,  and  which 
subjects  it  necessarily  to  the  action  of  the  civil  authority  which 
gives  it  being.  This  acceptance  of  legal  restrictions  and  privileges 
is  more  than  equivalent  to  a concordat,  and  establishes  as  the 


36 


civil  law  puts  it,  a right  iu  the  corporation  to  sue  and  to  be  sued, 
to  sue  any  one  against  whom  there  is  a legal  claim,  and  to  be  sued 
by  whomsoever  ma}^  have  a just  claim  against  it. 

In  all  these  matters  we  cannot  but  admire  the  knowledge, 
experience  and  wisdom  of  Eome,  so  slow  to  place  itself  in  conflict 
with  the  civil  authorities  or  the  customs  of  nations  anywhere. 
Tenacious  of  what  belongs  to  the  Church  by  divine  right,  as  es- 
sential to  its  being,  the  Holy  See  has  known  how  to  exercise  man}" 
temporal  added  rights  when  entrusted  to  her  by  the  confidence 
of  the  people,  and  at  other  times  to  drop  their  exercise  or  to  lay 
them  aside,  if  found  conflicting  with  or  hampering  in  any  sub- 
stantial way,  the  direct  purpose  of  her  existence  which  is  the 
salvation  of  souls.  Where  she  recognizes  her  inability  by  her 
own  direct  action  to  protect  the  rights  of  her  own  direct  represen- 
tatives in  the  clerical  order,  she  does  not  hesitate  to  allow  them 
the  use  of  the  civil  protection  of  the  governments,  whose  laws 
they  are  bound  to  obey  and  abide  by  when  they  do  not  come 
in  conflict  with  the  divine  rights  of  the  Church  and  the  law  of 
God. 


CHAPTER  YIII. 

The  first  plenary  Council  of  Baltimore  in  18 '>2  gives  its  attention  to  the  status 
of  priests.  The  second  plenary  Council  urges  the  formation  of  parishes. 
Parochial  rights  in  great  measure  conceded.  The  rector  must  be  consulted 
before  the  diAUsion  of  a mission. 

The  first  provincial  Councils  of  Baltimore  were  attended  by  the 
bishops  of  the  dioceses  throughout  the  United  States  on  this 
side  of  the  Rocky  Mountains,  which  formed  one  Ecclesiastical 
Province,  of  which  the  Archbishop  of  Baltimore  was  the  Metro - 
^Dolitan. 

At  the  convocation  of  the  seventh  in  1849,  there  appeared  as 
the  Metropolitan  of  the  new  ecclesiastical  province  of  St.  Louis, 
the  veteran  Archbishop,  Peter  Richard  Kenrick,  who  still  holds 
firmly  this  authority,  though  several  new  provinces  have  since 
been  formed  of  part  of  the  territory  that  was  subject  to  his  direc- 
tion at  that  time. 

The  first  Plenary  Council  of  Baltimore  Avas  held  in  1852.  This 
title  of  Plenary  Council  indicates  that  all  the  bishops  of  the  several 
ecclesiastical  proAunces  of  the  Church  in  the  United  States,  were 
gathered  in  the  council,  but  now  no  longer  under  the  usual  direc- 
tion of  a Metropolitan,  but  under  a Delegate  Apostolic.  The  See,  or 
Diocese  of  Baltimore,  having  been  the  first  Episcopal  See  created 


37 


in  the  order  of  time  in  the  original  thirteen  States  of  the  Union, 
was  honored  by  the  Holy  See  with  aright  of  precedence  or  23riniacy 
of  honor  among  all  the  bishoprics  or  archbishoprics  of  the  whole 
country.  This  privilege  did  not  confer  any  right  of  jurisdiction, 
or  attach  to  the  See  of  Baltimore,  even  by  courtesy,  the  right  of 
being  the  channel  through  which  the  call  to  the  bishops  to 
assemble  in  Plenary  Council  should  be  communicated.  This  call 
could  only  be  effective  through  a special  delegation  from  the  Holy 
See,  which  is  free  to  make  its  own,  choice  of  a delegate,  even  to 
send  as  its  representative  one  not  belonging  to  the  United  States. 
The  Council  may  be  convened  anywhere  deemed  proper  by  the 
delegate.  The  first  Plenary  Council  began  its  -work  by  renewing 
and  accepting  all  the  acts  of  the  seven  preceding  provincial 
councils  of  Baltimore  ; hence  all  the  legislation  that  we  have  here- 
tofore considered  was  ratified  and  is  held  to  be  in  'force  except 
where  expressly  modified  by  subsequent  plenary  councils.  No 
provincial  council  can  recall  the  legislation  of  a plenary  councib 
which  derives  its  higher  authority  from  the  delegation,  and  much 
more  from  the  modifications  and  the  ratifications  of  the  Holy  See, 
given  in  a much  more  direct  and  authoritative  form  than  is 
accorded  even  to  provincial  councils. 

We  find  the  first  plenary  council  of  1852  giving  direct  consid- 
eration to  the  status  of  priests  of  the  United  States.  The  tenth 
decree  lays  down  that  “it  is  very  expedient  that  the  ordinaries 
designate  ecclesiastical  districts  with  defined  limits,  as  also  rules 
about  the  jurisdiction  and  privileges  of  priests  as  soon  as  possible. 
The  bishops,  however,  can  change  these  districts,  and  it  is  theirs 
to  decide  to  which  churches,  and  to  which  priests  the  various 
positions  are  to  be  assigned.”  However  in  the  sixth  decree  the 
bishops  are  exhorted  “to  choose  priests  whose  age,  knowledge, 
excellent  life  and  administrative  ability  commend  them  as  consult- 
ors  whose  judgment  they  will  seek,  when  needful.  A praiseworthy 
custom  of  some  dioceses  is  highly  commended,  of  having  a fixed 
day  every  month  for  these  consultors  to  meet  for  the  discussion 
of  matters  connected  with  the  diocese,”  and  in  the  fifteenth  decree 
they  lay  down  the  important  recommendation  “that  each  year  the 
bishop  himself,  or  through  a priest  appointed  for  the  purpose, 
shall  call  for  an  account  of  the  temporalities  of  the  church  from 
the  administrators,  be  they  lay  or  clerical.”  The  division  of  the 
dioceses  as  far  as  possible  into  settled  and  defined  districts  or 
parishes,  was  very  emphatically  prescribed  in  the  second  plenary 
council  of  Baltimore,  held  in  1866.  The  name  mission  attributed 
even  to  these  districts  to-day,  does  not  in  any  way  exclude  the 


38 


idea  of  a truly  constituted  parish.  The  word  mission  is  used 
because  more  generic,  and  is  applicable  either  to  a parish  with  the 
exactly  defined  territory  with  fixed  limits  or  to  undefined  territory, 
oftentimes  a series  of  scattered  villages,  even  hamlets,  perhaps  in 
several  counties,  to  which  the  bishops  could  not  easily  give  exact 
boundaries.  Hence  the  Second  Plenary  Council,  while  wishing  the 
establishment  of  parishes,  took  care  not  to  make  its  decree  too 
exacting.  The  124th  decree  is  quite  positive,  however. 

“We  therefore  wish  that  throughout  all  of  these  provinces, 
especially  in  the  larger  towns,  where  there  are  several  churches, 
that  certain  districts  as  parishes  be  assigned  to  each  church  with 
clearly  defined  limits ; and  that  to  the  rector  there  be  given 
parochial  rights.” 

Canon  De  Angelis,  who  in  his  work  on  Canon  Law  (Tom  I,  part 
2d,  Lib.  1,  tit.  XXVIII,  pp.  52-53)  makes  special  reference  to  the 
status  of  parishes  in  the  United  States,  writes  : “A  parish  is  a de- 
termined church  of  a diocese  designated  by  a bishop  which  has  a 
population  within  distinct  and  circumscribed  limits,  to  which  a 
priest  as  rector  by  virtue  of  his  office  and  to  the  exclusion  of 
others  administers  the  Sacraments,  the  word  of  God  and  other 
spiritual  things.  Whenever,  therefore,  a bishop  has  appointed  a 
special  church  and  assigned  to  it  a population  within  certain  cir- 
cumscribed limits  and  appointed  one  designated  rector,  then,  by 
vii’tue  of  the  13th  chapter  of  the  Council  of  Trent,  there  is  the 
canonical  erection  of  a parish.  This  is  a matter  entirely  within 
the  competency  of  the  bishops,  especially  in  the  first  establish- 
ment and  partition,  and  is  their  duty  as  is  clear  from  the  quoted 
chapter  of  the  Council  of  Trent ; no  other  solemnity  is  required 
for  the  making  of  this  partition.” 

Once  parishes  have  been  formed  in  accord  with  the  Canon  Law 
of  the  Church,  they  cannot  be  altered  except  by  the  process  of 
the  same  law,  for  as  Canon  De  Angelis  remarks  (on  page  54  as 
above),  “ The  Canons  require  a reasonable  stability.” 

The  parishes  in  the  United  States,  wherever  the  requirement  of 
the  council  was  carried  out,  as  it  actually  was  in  almost  all  the 
larger  towns,  have  been  established  by  virtue  of  legislation  of  the 
most  competent  authority  that  of  a Plenary  Council  of  the  bishops 
of  the  United  States,  sanctioned  by  the  Holy  See.  These  districts 
having  fixed  limits  are  under  one  appointed  rector  who  has 
received  parochial  or  quasi  parochial  rights.  Parochial  rights,  as 
laid  down  by  Canon  Law,  are  to  baptize,  to  marry,  to  administer 
to  the  sick  the  Holy  Eucharist  and  Extreme  Unction  within  the 
limits  of  a parish.  The  funeral  services  in  the  church  and  at  the 


39 


cemetery  form  part  of  these  rights,  where  circumstances  have  not 
required  one  or  more  central  burial  places.  Also  a parochial 
right  is  that  of  maintenance  by  the  parishioners.  And  finall}^ 
there  is  the  parochial  right  of  preventing  an  infringement  of  the 
limits  of  the  parish.  To  these  rights  it  of  course  is  needless  here 
to  remark  that  there  are  attached  very  onerous  duties.  Lest  there 
should  be  any  misconception,  it  is  also  well  to  state  at  once  that 
even  where  a canonical  parish  has  been  established,  and  parochial 
or  quasi  parochial  rights  conceded,  it  does  not  necessarily  follow 
that  the  right  of  irremovability  is  granted  to  the  rector.  In  fact, 
the  Second  Plenary  Council,  with  the  assent  tacit  at  least  of  the 
Holy  See,  excluded  the  canonical  right  of  strictly  called  irremova- 
bility from  those  attributed  to  the  rectors  of  these  parishes.  Al- 
ready something  has  been  said  to  indicate  what  extent  of  per- 
manence may  justly  attach  to  the  appointment  to  a rectorship  of 
any  parish.  A clearer  statement  may  be  of  interest  after  a further 
consideration  of  one  of  the  canonical  effects  that  result  from  the 
establishment  of  a parish.  The  rector,  whether  removable  or  not, 
becomes  the  guardian  of  the  spiritual  and  temporal  interests  of 
the  parish  in  subordination  to  the  authority  of  the  bishop.  He 
has  to  guard  these  interests  from  unjust  aggression  from  any 
source ; he  is  obliged  to  seek  by  all  due  diligence  to  hold  fast  his 
people’s  rights.  The  bishop  has  from  Canon  Law  the  right  of 
establishing  and  even  dividing  established  parishes ; but  a part 
of  the  process  required  of  the -bishop  in  taking  such  action  is  a 
serious  consultation  with  the  representatives  of  the  parishes  whose 
interests  are  involved.  With  our  rapidly  increasing  and  changing- 
populations  these  alterations  are  much  more  needed,  and  the 
serious  reasons  for  the  changes  are  much  more  frequent  than  in 
the  more  settled  communities  of  the  Old  World.  Even  here,  how- 
ever, the  rectors  of  parishes  from  which  portions  are  to  be  taken 
for  the  formation  of  a new  parochial  district,  are  entitled  to  have 
their  views  taken  into  serious  consideration,  and  their  objections 
carefully  weighed  before  the  dismemberment  of  any  part  of  their 
parish  is  made.  The  Third  Plenary  Council  of  1884  has  explicitly 
(in  chap.  2d,  par.  20),  decreed  that  the  rector  of  a mission  of 
which  the  dismemberment  is  suggested  by  the  bishop  to  the 
consultors  of  the  diocese  is  to  be  heard  before  it  is  determined 
upon.  The  reasonableness  of  this  provision  is  very  apparent, 
since  no  one  is  better  calculated  to  point  out  any  evils  consequent 
upon  the  j)roposed  partition,  than  he  who  is  familiar  with  the 
ground.  Even  if  his  objections  turn  out  not  to  be  deemed  of  suf- 
ficient weight,  now  that  he  knows  that  his  reasons  are  to  be  sub- 


40 


mitted  to  the  authoritative  examiuatiou  of  the  cousultors  required 
by  the  law,  he  will  the  more  readily  acquiesce  in  the  final  decision 
of  the  bishop  who  has  been  aided  by  the  conscientious  advice  of 
impartial  men.  Yet  even  then  if  he  attaches  such  serious  im- 
portance to  the  matter,  that  he  thinks  that  it  requires  further 
consideration,  any  aggrieved  party  has  a right  of  appeal  to  the 
higher  authority.  Yet  the  Church  has  provided  that  in  a question 
that  involves  so  directly  the  immediate  welfare  of  souls  to  be  pro- 
vided for  by  the  proper  administration  of  the  sacraments  and  of 
the  word  of  Grod,  the  bishop  who  has  followed  the  proper  process 
of  the  law  may  proceed  with  the  establishment  of  the  new  parish, 
subjecting  himself  to  the  risk  of  making  due  indemnity  for  any 
injury  done  to  the  aggrieved  party,  if  the  higher  authority,  which 
in  this  case  is  the  Holy  See,  reverses  his  decision. 


CHAPTER  IX. 

Canonical  parishes  erected  in  the  United  States.  Irremovable  rectors.  Their 
number  not  to  be  inconsiderately  increased  beyond  one  in  ten.  The 
Roman  instructions  favor  an  enlargement  of  this  number.  Competitive 
examination  requisite  for  the  obtaining  a parish.  The  bishop  must  select 
the  worthiest  of  those  found  to  be  fit  by  the  Synodal  Examiners.  An'  appeal 
from  the  bishop’s  selection  lawful. 

The  erection  of  a canonical  parish  does  not  necessarily  carry 
with  it  the  strict  canonical  right  of  irremovability  on  the  part  of 
its  rector.  The  Council  of  Trent’s  enactment,  which  the  second 
Plenary  Council  of  Baltimore  had  in  view  when  it  decreed  that 
districts  should  be  set  apart  as  parishes  in  the  larger  towns  of  the 
United  States,  made  special  provision  for  exceptional  cases.  The 
decree  of  the  Council  of  Trent  ( Sess.  XXIV.  De.  Ref.  chap,  13  ) 
reads  : 

“ In  those  cities  and  places  where  the  parish  churches  have  not 
any  certain  boundaries,  neither  have  the  rectors  thereof  their  own 
proper  people  to  govern,  but  administer  the  sacraments  to  all 
indiscriminately  who  desire  them,  the  Holy  Synod  enjoins  on 
bishops  that  for  the  greater  security  of  the  salvation  of  souls 
committed  to  their  charge,  having  divided  the  people  into  fixed  and 
proper  parishes,  they  shall  assign  to  each  parish  its  own  perpetual 
and  peculiar  parish  priest,  who  may  know  his  own  parishioners 
and  from  whom  alone  they  may  licitly  receive  the  sacraments,  or 
the  bishops  shall  make  such  other  provision  as  may  be  more  bene- 
ficial, according  as  the  character  of  the  place  may  require.  They 
shall  take  care  that  the  same  be  done  as  soon  as  possible  in  those 


41 


cities  and  places  where  there  are  no  parish  churches,  privileges 
and  customs,  even  though  immemorial,  to  the  contrary  not- 
withstanding.” 

The  bishops  of  the  second  Plenary  Council  availed  themselves 
of  the  special  privilege  granted  them  by  the  Council  of  Trent, 
even  though  they  thought ' that  the  time  had  come  to  carry  out 
without  further  delay  the  provisions  of  the  law  that  alfected  the 
people  themselves.  Hence  after  decreeing  in  par.  124  that  through- 
out all  the  ecclesiastical  provinces  of  the  country  these  parishes 
should  be  created,  and  their  rectors  endowed  with  parochial  or 
quasi  parochial  rights,  they  add  at  once  : ‘‘  By  the  use  of  words 

parochial  right,  parish  and  parish  priest,  we  do  not  purpose  to 
convey  to  the  rector  of  each  church  the  so-called  right  of  irremov- 
ability, or  in  any  way  to  lessen  the  power  which  from  the  accepted 
practice  in  these*  provinces  the  bishop  has  of  depriving  a priest 
of  his  office  or  of  transferring  him  elsewhere.  We  however  warn 
and  exhort  bishops  not  to  avail  themselves  of  their  power  except 
for  serious  reasons,  and  ever  keeping  in  view  the  various  deserts.” 

The  Fathers  of  the  Plenary  Council  did  not  wish  to  hurry  in  the 
conferring  of  any  privileges  upon  priests  ; they  yet  had  in  par.  123 
expressed  the  wish  to  conform  as  far  as  circumstances  permitted, 
to  the  universal  legislation  of  the  Church  as  reflected  in  the  above 
chapter  13th  of  the  Council  of  Trent.  In  par.  125,  wishing  to  note 
in  what  matter  they  would  refrain  from  accepting  in  its  fullness, 
the  applicability  to  our  circumstances  of  the  Trentine  decree,  they 
call  attention  to  their  having  wished  to  grant  the  other  parochial 
or  quasi  parochial  rights,  but  not  the  strict  right  of  irremovability 
on  the  part  of  the  rector. 

There  is  a familiar  illustration  of  the  existence  of  a canonical 
parish  without  the  canonical  right  of  irremovability  of  the  rector 
in  all  parishes  under  the  control  and  supervision  of  any  regular 
Order,  where  the  rector’s  removal  is  subject  to  the  wish  of  the 
superior  of  the  Order,  even  without  the  necessity  of  consultation 
with  the  bishop. 

The  districts  set  apart  as  parishes  in  the  towns  of  the  United 
States  in  accord  with  the  decree  of  the  Second  Plenary  Council 
had  all  the  characteristics  required  by  Canon  Law,  in  canonically 
erected  parishes.  To-day  the  Third  Plenary  Council  of  1884  has 
made  provision  for  endowing  the  rectors  of  a certain  number 
among  these  parishes  with  several  of  the  substantial  canonical 
rights,  of  which  all  were  left  shorn  by  the  earlier  legislation.  The 
bishops  were  instructed  to  select,  after  taking  the  advice  of  their 
consultors,  these  parishes  whose  rectors  should  be  enriched  by  the 


42 


right  of  irremovability  or  strictly  canonical  permanence.  The 
•conditions  appointed  as  necessary  requisites  for  this  selection  were 
that  these  parishes  should  have  a respectable  church,  a school  for 
boys  and  girls,  a proper  rectory  or  pastoral  residence,  and  that 
the  income  or  reliable  revenues  of  the  j)arish  should  be  sufficient 
to  meet  without  great  difficulty  the  expenses  of  the  rectors  and 
the  church’s  maintenance,  as  also  the  support  of  the  school. 

The  first  appointment  of  these  irremovable,  or  canonically 
permanent  rectors,  is  left  to  the  bishops,  whose  conscience  or  judg- 
ment before  God  is  made  responsible  for  the  selection  of  those 
whom  they  decide  to  be  the  more  worthy  and  fitted  for  the  honor. 
The  number  of  these  irremovable  rectors  is  for  the  present  deter- 
mined by  the  proportion  of  one  to  every  ten  of  the  missionary 
rectors  in  a diocese.  This  proportion  is  of  strict  obligation  in  the 
sense  that  one  at  least  in  ten  should  be  made  irremovable.  The 
limitation  on  the  other  side  is  clearly  not  of  the  same  strictness,  as 
it  is  laid  down  merely  that  within  the  twenty  years  following  the 
council  that  proportion  should  not  be  inconsiderately  exceeded. 
If  in  any  special  province  of  the  country,  the  bishops  should  deem 
it  wise  to  extend  the  proportion,  or  even  if  a bishop  should  by 
advice  of  his  consultors,  and  especially  with  the  further  co-oper- 
ation of  his  clergy  gathered  in  a diocesan  synod,  come  to  the 
mature  conclusion  that  a greater  number  of  such  appointments 
would  be  more  conducive  to  the  \velfare  of  the  diocese,  there  is 
nothing  in  the  wording  of  the  decree  to  discountenance  it.  There 
is  in  it  but  a serious  caution  against  hasty,  inconsiderate  action. 
It  is  notoriously  within  the  spirit  of  the  legislation  highly  recom- 
mended by  the  Propaganda,  to  enlarge  the  number  of  these 
canonically  irremovable  rectors.  The  caution  of  our  own  bishops 
prompted  them  in  new  local  legislation  to  discountenance  as  great 
a multi j)lication  of  these  privileged  rectors  as  the  Propaganda 
instructions  seemed  to  encourage.  One  at  least  of  every  ten  was 
recommended  by  the  Propaganda.  One  in  ten  is  now  prescribed, 
but  this  proportion  while  not  necessarily  fixed  must  not  be  hastily 
or  inconsiderately  exceeded. 

Certain  qualifications  are  required  on  the  part  of  the  rectors  to 
be  endowed  with  this  privilege.  The}*  must  have  given  evidence 
of  their  ability  to  administer  to  the  temporal  and  spiritual  affairs 
of  a parish,  and  the  period  of  ten  years  in  the  exercise  of  the 
ministry  is  required  as  a necessary  groundwork  for  these  proofs 
and  evidences  of  administrative  ability.  For  the  successorship 
of  these  first  appointees  by  the  bishop,  a serious  competitive 
■examination  in  the  various  kinds  of  theological  lore  required  by 


48 


a parish  priest  will  be  necessary  in  2)resence  of  certain  examiners 
called  Synodal  Examiners  because  ordinarily  appointed  by  the 
bishoj)  as  satisfactory  to  and  apj^roved  by  the  clergy  gathered  in 
diocesan  synod.  There  rests  upon  the  bishop  the  obligation  of 
selecting  the  more  worthy  one  of  those  examined,  so  much  so  that 
if  any  one  should  feel  seriously  aggrieved  at  being  passed  over, 
while  he  knew  that  his  examination  was  easily  the  most  brilliant 
of  all,  and  the  other  requirements  of  administrative  ability  and 
moral  conduct  are  clearly  present,  the  law  gives  him  the  right  of 
appeal  from  the  siq^posed  partiality  of  the  bishop. 

This  examination  extends  to  moral,  dogmatic  and  liturgical 
theology  as  also  to  canon  law  and  to  the  method  of  popular 
instruction  of  the  people  in  the  Christian  doctrine.  There  is  a 
consideration  of  all  the  various  qualifications  required  in  a pastor 
of  souls,  and  the  various  offices  and  experiences  of  the  examined 
are  thoroughly  weighed  by  the  Examiners,  of  whom  at  least  three 
are  required  to  be  i:)resent  along  with  the  bishoj)  or  his  Vicar- 
general.  Neither  of  the  latter  has  any  voice  in  determining  the 
result  of  the  examination.  The  Synodal  Examiners  alone  determine 
which  of  the  examined  have  the  requisite  qualifications  and  are 
therefore  fitted  for  the  vacant  place  ; and  the  bishop  is  bound  in 
conscience  before  God  to  select  the  one  who  has  clearly  given  the 
best  evidence  of  fitness,  and  who  is  the  most  worthy  of  all  who 
stood  the  examination.  A vote  is  in  the  matter  of  examination 
allowed  to  the  bishoj)  or  vicar-general,  whenever  there  should 
be  a tie,  or  each  examiner  should  differ  from  the  other. 

The  absence  of  this  competitive  examination  as  required  by  the 
Council  of  Trent  and  explained  by  Benedict  XIV  for  the  selection 
of  a canonical  parish  priest  was  in  great  measure  the  motive  of 
denying,  in  1866,  this  right  of  irremovability.  This  examination 
once  undergone  gives  an  implicit  right  of  contract  and  strict  jus- 
tice to  the  successful  candidate  to  enjoy  its  fruit  till  circumstances 
should  warrant  the  canonical  method  for  removal.  A kind  of  ex- 
amination was  suggested,  but  I believe  nowhere  adopted  or  even 
put  into  any  repeated  practice.  . In  par.  126  the  Fathers  of  the 
Second  Plenary  Council  stated  that  the  circumstances  of  our 
country  would  not  at  that  time  permit  the  carrying  out  the  wise 
provisions  of  the  Council  of  Trent  for  a thorough  examination  as 
a preliminary  to  the  selection  of  canonical  parish  priests,  even 
where  there  should  be  any.  The  difficulty  was  probably  twofold; 
on  one  side  the  required  number  of  examiners  was  hard  to  find 
and  bring  together,  and  on  the  other  Ihe  rapid  increase  of  Cath- 
olics in  this  country  and  the  need  of  rectors  to  push  forward  the 


44 


material  development  to  meet  the  preliminary  wants  of  the  people 
were  found  sufficient  excuses  for  putting  aside  the  mild  sugges- 
tion made  at  that  time  as  a substitute  for  the  Trentine  Com- 
petitive examination.  The  Fathers  “ thought  that  no  one  should 
be  placed  over  a parish  church  without  undergoing  an  examina- 
tion before  the  bishop  and  two  priests  appointed  by  the  bishop, 
nor  should  any  one  be  admitted  to  this  examination  who  had  not 
exercised  the  sacred  ministry  for  five  years  in  the  diocese  where 
the  parish  was  situated.” 

The  competitive  examination  is  not  an  essential  requirement 
for  acquiring  either  the  position  of  parish  priest  or  the  privilege 
of  canonical  permanency,  called  irremovability.  Thus  we  find  in 
one  case  the  first  appointment  left  to  the  deliberate  determination 
of  the  bishop.  Thus  also  in  the  case  of  patrimonial  presentations 
in  Catholic  countries  to  a parish,  notwithstanding  the  plain 
requirements  of  the  Council  of  Trent,  the  custom  has  done  away 
with  the  obligation  of  a competitive  examination,  if  the  candidate 
presented  is  found  to  be  fit  by  the  bishop  of  the  diocese. 

We  find  also  that  even  in  the  matter  of  this  competitive  exam- 
ination as  required  for  the  obtaining  of  one  of  these  parishes  to 
which  the  right  of  irremovability  is  attached  to  the  rector’s  posi- 
tion, a variance  has  been  permitted  where  deemed  opportune  and 
necessary  from  the  form  laid  down  by  the  Council  of  Trent. 

The  Trentine  Law  would  demand  that  this  competitive  exam- 
ination should  be  held  directly  for  each  local  vacancy,  as  it  oc- 
curred ; but  a privilege  has  been  granted  for  dioceses  of  great 
extension,  or  wherever  serious  difficulties  should  be  in  the  way  of 
priests  assembling  there  and  then  for  a special  vacancy,  that  the 
examination  in  the  matter  of  theological  learning  might  be  kept 
separate  from  the  investigation  into  the  other  needful  qualifica- 
tions. Hence  it  is  permitted  that  once  a year  a general  examina- 
tion may  be  had  of  all  those  whose  learning  would  be  likely  to 
be  adequate  for  the  position,  and  the  declaration  of  fitness  which 
would  result  therefrom,  would  have  effect  for  five  years  as  suffi- 
cient proof  of  the  required  ability  in  the  theological  dej)artment. 
Even  then,  however,  the  fitness  of  the  various  candidates  in  the 
other  requisites  is  still  subjected  immediately  before  the  filling  of 
any  vacancy  to  the  judgment  of  the  Synodal  Examiners  appointed 
for  the  purpose,  wffiile  to  the  bishop  is  left  the  decision  of  which 
is  the  most  worthy  among  the  candidates,  whose  rights  are 
secured  always  by  the  canonical  right  of  appeal  if  they  should 
feel  reasonably  aggrieved.  On  appeal  the  evidences  of  their  ex- 
aminations are  submitted  to  the  higher  authority,  while  the- 


45 


bishop  has  the  right  and  the  obligation  to  make  known  to  the 
appellate  authority  any  good  reasons,  public  or  private,  which 
may  have  induced  him  to  put  aside  one  who  may  have  given  the 
most  brilliant  proofs  of  his  knowledge  in  the  theories  and  prac- 
tices of  the  position. 


CHAPTEE  X. 

All  missionaiy  rectors  are  permanent  in  office  and  not  to  be  changed  vdthout  a 
serious  cause.  Irremovable  rectors  are  subject  to  removal,  if  found  by  the 
specified  trial  to  be  permanently  harmful  to  the  parish.  The  special  causes 
for  removal  in  the  United  States  specified. 

The  irremovability  or  canonical  permanence  granted  to  a sjjeci- 
hed  number  of  rectors  of  2:)arishes  in  this  country  is  a great 
advance  in  security  of  tenure  for  them  over  the  state  of  missionary 
rectors,  which  is  the  title  of  the  rectors  of  all  other  parishes  or 
missionary  districts.  The  gist  of  the  difference  is  found  in  this 
that  a serious  administrative  cause  or  deemed  such  by  the  bishop, 
Avhere  there  is  no  circumstance  pointing  to  the  change  as  a pun- 
ishment for  moral  delinquency,  may  authorize  a bishop  to  transfer 
the  ordinaVy  missionary  rector  from  the  charge  of  one  parish  to 
that  of  another,  without  any  special  form  of  law.  There,  has  been 
no  legislation  on  the  j^art  of  any  Plenary  Council  nor,  as  far  I can 
see,  on  the  part  of  Eome  to  interfere  with  this  power  of  the  bishops 
with  regard  to  the  missionary  rectors.  Both  the  Plenary  Coun- 
cils and  the  Propaganda  have  time  and  again  warned  the  bishops 
not  to  exercise  such  a i:)ower  without  the  certainty  of  a serious 
reason,  and  to  be  sure  to  keep  before  their  eyes  the  services  and 
deserts  of  those  transferred,  lest  injustice  be  done  them.  The 
Third  Plenary  Council  renews  the  admonition  of  the  second  by 
repeating  its  words  : “We  warn  and  exhort  bishops  not  to 
make  use  of  this  power  except  for  serious  reasons  and  keep- 
ing in  view  the  various  deserts.”  In  its  supplement  to  its  instruc- 
tion of  1878  the  Propaganda  gave  the  distinct  rule  according 
to  which  bishojDS  are  expected  to  deal  with  all  priests:  “The 
bishops  should  be  careful  not  to'  transfer  priests  against  their 
Avill  from  one  place  to  another  without  a serious  and  reasonable 
cause.” 

A special  clause  was  added  that  if  any  crime  were  charged 
against  a missionary  rector,  he  should  not  be  subjected  to  final 
deposition  from  his  charge  of  rector  Avithout  the  form  of  trial  pre- 
scribed in  the  law.  This  did  not,  in  uny  opinion,  prevent  a bishoj) 
for  serious  administrative  reasons  Avhich  should  not  in  any  Avay 


46 


involve  or  suppose  criminality  of  any  kind,  from  transferring  a 
missionary  rector  to  another  charge  of  practically  equivalent 
standing.  If  any  one  be  sent  from  an  honorable  place  to  one 
clearly  lower,  the  impression  upon  the  peojDle  would  be  that  there 
was  some  guilt,  and  hence  if  the  one  so  treated  should  in  his  con- 
sciousness of  innocence  demand  an  investigation  or  trial,  both  na- 
tural equity  and  the  law  concede  it  to  him,  and  the  change  must 
not  be  made  if  it  really  does  create  such  suspicion,  if  he  is  not 
proved  guilty.  He  has  the  certain  right  to  his  good  name,  which  no 
one  has  the  right  to  take  from  him  or  to  put  in  jeopardy  till  he  is 
shown  to  have  forfeited  it.  There  is  nothing  in  the  Third  Plenary 
Council  to  change  the  standing  of  ordinary  missionary  rectors. 
They  were  in  the  technical  language  of  the  law  “ movable  at  will,”^ 
and  are  so  still ; but  we  have  seen  how  natural  equity  and  the 
Plenary  Councils  and  the  ProjDaganda  have  interpreted  that  this 
“ will  ” must  be  determined  by  serious  motives  and  be  guided  by 
anxious  care  to  save  the  good  name  of  any  one  affected  by  the 
removal.  As  the  deposition  from  the  charge  of  a missionary  rector 
to  the  position  of  an  assistant  or  of  a chaplain  or  the  like  against 
his  will,  must  almost  necessarily  be  construed  into  a punishment 
for  some  guilt,  the  law,  which  is  made  in  view  of  what  ordinarily 
happens,  insists  upon  the  form  of  trial  in  vogue  if  the  one  so  dealt 
with  demands  it.  This  is  certain  if  any  public  suspicion  of  wrong- 
doing is  aroused  by  the  transfer.  Not  a word  is  found  in  the 
Third  Plenary  Council  nor  in  any  published  or  properly  known 
Koman  instruction  to  do  away  with  the  principle  involved  in  the 
express  prescription  of  the  Propaganda  in  1879.  Any  change  in 
the  form  of  trial,  leaves  intact  the  principle  that  such  a deposition, 
if  it  implies  guilt  in  the  deposed  one,  must  not  be  definitely  car- 
ried out  without  a trial  in  the  old  form,  where  it  is  still  tolerated 
or  in  the  new  which  may  have  superseded  the  former  one. 

On  the  other  hand,  the  newly  granted  irremovability  to  some 
of  the  rectors  is  not  of  an  unlimited  extent.  It  might  turn  out  to 
be  a curse  both  to  the  rectors  and  to  the  people.  This  irremova- 
bility is  not  of  such  a character  as  to  necessariH  fix  a rector  in  a 
2)arish  in  such  a way  that  he  may  not  have  any  chance  of  a trans- 
fer to  another,  if  he  should  earnestly  seek  it.  There  is  nothing  in 
the  law  to  prevent  an  irremovable  rector  from  seeking  another 
j^arish,  whether  its  rector  were  irremovable  or  not.  The  irre- 
movability follows  the  j)arish  and  if  he  were  to  become  rector  of  a 
parish  to  which  the  privilege  is  not  attached,  he  loses  his  privilege 
of  irremovability.  As  long  as  there  is  such  a disproportion  as  one 
in  ten  between  the  “movables”  and  “irremovables,”  it  is  very 


47 


likely  that  many  of  the  most  experienced  of  the  movables  will  not 
renounce  their  technically  “movable”  position  for  some  of  the 
parishes  designated  as  irremovable,  and  some  rectors  of  the  latter 
may  think  that  their  privileges  are  too  costly.  No  one  can  be 
compelled  to  labor  and  toil  for  a privilege  which  he  may  not  ap- 
preciate very  highly.  There  are  not  a few  good  men  to  whom 
fixity  of  tenure,  that  ties  them  down  too  closely,  becomes  more 
irksome  than  all  the  variety  and  changes  to  which  the  greatest 
caprice  might  subject  them.  There  is  a great  variety  of  characters 
among  priests.  Some  need  the  stimulus  of  change  to  keep  up 
their  spirits,  not  to  say  their  flagging  zeal ; and  hence  very  wisely 
the  law  permits  for  serious  reasons  the  transfers  and  only  dis- 
countenances them  when  made  against  their  will.  But  the  trans- 
fer or  deposition  or  permanent  material  diminution  of  authority 
of  the  irremovable  rector  is  not  allowed  at  any  time,  for  however 
good  reason,  administrative  or  otherwise,  against  the  rector’s  wish 
without  the  form  of  trial  prescribed  by  the  law.  To-day  the  form 
jDrescribed  since  1884  by  the  Propaganda  for  the  United  States  is 
, substantially  identical  with  that  which  to-day  is  followed  in  Italy 
and  France,  and  in  this  we  are  ahead  of  England  which  still  has 
the  form  of^ a judicial  “commission  of  investigation,”  laid  down 
for  the  English  bishops  as  early  as  1852,  which  was  extended  with 
some  modifications  to  the  United  States  in  1878,  but  which  here 
has  now  been  superseded  by  the  new  form. 

It  is  necessary  for  the  welfare  of  the  people  that  no  rector,  in 
fact  no  superior  of  even  the  higher  grades  should  have  a fixity  of 
tenure  or  irremovability  that  would  seriously  conflict  with  the 
good  of  the  souls,  of  whom  the  care  has  been  assigned  him. 
Hence  Canon  law  provides  that  any  one  having  this  canonical 
irremovability  especially  when  connected  with  the  care  of  souls, 
may  be  deprived  of  it  on  account  of  certain  specified  delinquen- 
cies mentioned  in  the  law.  The  Third  Plenary  Council  states 
very  clearly  that  all  serious  misdeeds  involving  a serious  breach 
of  ecclesiastical  discipline  and  notably  jeopardising  the  temporal 
or  spiritual  rights  of  the  mission,  if  brought  home  to  the  rector  in 
proper  trial,  are  sufficient  and  ample  motives  for  his  deposition 
from  the  charge  of  a parish  to  which  irremovability  is  attached. 
The  bishops,  with  the  sanction  of  the  Holy  See,  have  specified  a 
certain  number  of  these  misdeeds,  which  they  deemed  especially 
requiring  such  removal  in  this  country. 

The  first  is  an  obstinate  disobedience  in  a matter  of  great  im- 
portance to  the  rules  established  by  the  bishop  for  the  temporal 


48 


administration  of  tlie  mission  or  for  the  carrying  of  the  temporal 
burdens  of  the  diocese. 

The  second  is  an  open  refusal,  after  repeated  warnings,  to  obey 
the  bishop’s  commands  with  regard  to  the  support  of  Catholic 
schools  to  their  great  detriment,  or  to  erect  those  which  the  bishop 
after  mature  consideration  and  due  weighing  of  the  resources  of 
the  mission  declares  to  be  within  its  power  and  obligation. 

The  third  is  the  rash  and  after  due  warning  the  repeated 
assumption  of  debt  for  the  church  or  parish  or  for  the  priest  him- 
self without  permission  of  the  bishop  ; or  a clearly  wilful  dis- 
obedience in  the  matter  of  not  paying  the  debts  already  assumed. 

The  fourth  is  a collusion  with  the  la}"  trustees  to  give  a false 
note  of  indebtedness  to  the  rector. 

The  fifth  is  a wilful  deceiving  of  the  bishoj)  by  a deliberate 
false  statement  in  the  annual  account  of  the  temporal  or  spiritual 
condition  of  the  parish  in  a matter  of  such  importance  as  to  be 
likely  to  involve  the  parish  in  serious  damage. 

The  sixth  is  a public  and  lasting  defamation  in  the  matter  of 
sacerdotal  purity,  entailing  a serious  loss  to  souls. 

The  seventh  and  last  cause  mentioned  for  this  removal  by  the* 
Plenary  Council  is  one  that  is  suggested  by  the  material  work 
that  is  constantly  required  in  the  United  States  by  the  universal 
increase  and  development  of  every  part  of  the  country.  Hence  it 
was  provided  that  if  one  who  has  become  an  irremovable  rector 
should  afterwards  even  without  any  fault  of  his  turn  out  or  be 
found  to  be  totally,  notoriously  and  permanently  unfit  for  the  ad- 
ministration of  the  j)arish,  he  should  if  possible  be  persuaded  to 
resign.  If  the  resources  of  the  parish  should  permit  the  remedy 
suggested  by  Canon  Law  of  appointing  a vicar  with  a proper  sal- 
ary, one  should  be  appointed  to  supervise  the  department  where 
the  necessary  fitness  is  seriously  lacking.  Yet  if  the  resources  of 
the  parish  should  not  allow  of  the  double  appointment,  the  bishop 
is  permitted  to  take  the  legal  steps  to  demonstrate  this  complete 
incapacity,  and  if  it  is  shown  he  may  proceed  to  remove  a rector 
who  is  unreasonably  unwilling.  However,  in  either  case,  whether 
the  resignation  or  removal  has  been  voluntary  or  forced,  the 
bishop  must  see  that  a suitable  pension,  deemed  adequate  by 
the  bishop’s  consultors,  be  given  for  his  maintenancOy  and  also 
that  the  title  of  Honorary  Hector  be  given  him. 

The  whole  system  of  ecclesiastical  government  is  so  thoroughly 
arranged,  that  it  is  most  certainly  found  that  the  more  this 
express  and  legally  guarded  fixity  of  tenure'  is  extended,  the 
more  devoted  the  rectors  are  to  the  material  and  spiritual  inter- 


40 


■ests  of  tlieir  parishes.  Hence  the  church  general  legislation  is 
always  pointed  in  the  direction  of  the  rational  stability  of  all 
appointments,  whilst  in  those  that  are  connected  with  the  care 
of  souls,  the  canons  breathe  a i^ositive  dislike  and  repugnance  to 
capricious  changes.  In  all  cases  nothing  is  left  to  the  sole  judg- 
ment of  any  one  superior.  Ordinarily  there  is  a definite  way  of 
appeal  to  a recognized  higher  court  from  any  judicial  unfairness. 
Certain  well  defined  forms  of  procedure  are  laid  down,  the  sub- 
stantial omission  or  violation  of  which  alone  is  sufficient  reason 
for  putting  aside  the  decision  of  the  lower  authority.  In  all  cases 
there  is  always  open  a recourse  or  extra  judicial  appeal  against 
any  grievance  inflicted  by  any  superior  whatsoever ; and  if  the 
superior’s  action  is  not  found  to  be  in  accord  with  the  law  or 
with  equity,  the  higher  authority  is  obliged  in  consequence  to 
reverse  it  and  bring  the  proper  remedy  for  the  grievance  inflicted. 
And  this  recourse  or  appeal,  judicial  or  extra  judicial,  can  never, 
if  properly  brought,  be  interpreted  as  a want  of  respect  for  any 
church  authority  ; rather  it  is  a thorough  recognition  of  the  great 
truth  that  the  church  wishes  our  reasonable  homage  to  her  teach- 
ings and  a rational  obedience  to  her  commands,  and  that  the 
higher  we  go  towards  the  supreme  rulers  in  the  church,  the  more 
confidence  we  have  in  their  love  of  the  right,  and  in  their  following 
•of  the  equities  of  the  Eternal  Law,  to  which  all  men  however  en- 
dowed with  power  are  forever  subject. 


CHAPTER  XI. 


No  [one  should  ever  be  condemned  unheard.  Any  one  accused  has  a right  to 
aid  of  counsel.  Various  forms  of  trial  of  priests  in  the  United  States.  To- 
day every  cleric  accused  has  a right  to  a trial  before  chastisement  can  be 
inflicted. 

In  every  diocese  the  ordinary  judge  in  ecclesiastical  cases  is  the 
bishop,  whose  control  extends  both  to  cases  of  delinquents  upon 
whom  correction  or  chastisement  is  to  be  inflicted,  and  to  the  set- 
tling of  differences  that  may  arise  between  ecclesiastics  or  clerics 
in  matters  strictly  ecclesiastical,  or  in  Catholic  countries  wherever 
the  full  and  anciently  acknowledged  privileges  of  the  Ecclesiasti- 
eal  Court  are  recognized,  to  any  case  wherein  an  ecclesiastic  is 
involved. 

The  purpose  now  in  view  is  to  consider  the  bishop’s  relation  to 
clerics,  and  especially  to  priests,  whenever  there  is  a complaint 
against  them  for  breach  of  the  law,  which  is  under  his  guardian- 


50 


ship.  No  one  should  ever  he  condemned  unheard.  Natural 
equity  and  justice  which  hind  the  highest  ecclesiastical  no  less  than 
the  highest  civil  rulers  require  that  every  one  shall  have  a chance 
to  exculpate  himself,  if  accused,  before  any  sentence  of  condem- 
nation he  passed  upon  him.  The  Church  has  always  thoroughly 
recognized  this  principle,  and  no  heed  need  in  conscience  he  ever 
given  to  any  action  that  is  at  variance  with  it.  In  a matter  of 
such  vital  importance  the  Church  has  always  laid  stress  upon  the 
substantial  observance  of  certain  forms  in  any  trial,  and  doubly 
so  where  there  is  a question  of  inflicting  serious  chastisement  up- 
on any  one  for  alleged  delinquency.  It  must  he  properly  proved 
that  the  alleged  action  he  really  a delinquency  in  the  eyes  of  the 
law;  then  that  the  accused  deliberately  and  with  malice  did  what 
has  been  proved  to  be  a delinqueney  and  is  directly  charged 
against  him.  His  explanations  are  to  be  heard  before  sentence  is 
passed.  He  has  invariably  a right  to  the  aid  of  counsel  to  defend 
him.  Any  judge  who,  in  a trial,  should  oppose  the  right  of  an  ac- 
cused to  the  aid  of  counsel,  shows  that  he  is  wanting  in  the  first 
principle  of  justice.  Nearest  to  him  in  this  lack  of  natural  equity 
is  the  judge  who  considers  it  a personal  grievance  if  any  lawyer 
is  prepared  to  undertake  the  defense  of  the  accused.  There  is  no 
need  of  any  statute  to  allow  counsel.  The  church  always  recog- 
nizes this  as  an  immediate  outcome  of  the  natural  equities  which 
can  never  be  put  aside,  and  must  always  be  taken  for  granted. 
The  Church  provided  also  that  the  bishop  though  judge  be  never 
left  alone  in  a matter  that  concerns  the  rights  of  a third  party,  and, 
above  all  in  the  matter  of  reputation,  which  to  honorable  men  is 
oftentimes  as  dear  as  life  itself.  Hence,  It  requires  a thorough 
sifting  process,  made  by  others  besides  the  bishop,  of  the  charges, 
even  before  they  are  formally  brought  against  any  one. 

A sketch  of  the  various  procedures  designed  for  use  in  the 
United  States  will  have  the  advantage  of  keeping  our  interest 
alive  in  the  elucidation  of  a theme  suited  to  make  known  justice 
and  peace  as  always  hand-in-hand,  or  rather  in  eternal  embrace. 

The  first  formal  attempt  to  call  legislative  attention  in  the 
United  States  to  the  established  forms  for  the  serious  chastise- 
ment of  any  priest,  such  as  is  always  the  privation  of  the  exercise 
of  his  sacerdotal  powers,  appears  in  the  Provincial  Council  of  St. 
Louis,  held  in  1855,  under  the  presidency  of  the  Metropolitan, 
Archbishop  Peter  Eichard  Kenrick. 

The  Provincial  Council  of  St.  Louis  could  have  no  authority  of 
itself  in  the  other  provinces  of  the  United  States  but  when  this 
decree  was,  in  accord  with  the  rule,  laid  down  for  provincial 


51 


councils,  submitted  to  the  Propaganda  for  revision  and  emenda- 
tion, the  Propaganda  required  certain  important  modifications  to 
bring  it  in  accord  wiih  the  legislation  of  ,^the  Universal  Church, 
and  then  instructed  the  Metropolitan  to  send  the  decree  so  modi- 
fied to  the  other  Metropolitans  of  the  country  with  the  expressed 
desire  of  the  Propaganda  that  it  should  be  adopted  in  their 
provinces  also.  This  was  formallj^  done  by  all  the  bishops  when 
assembled  in  the  second  Plenary  Council  of  Baltimore,  in  1866 
(No.  77),  which  made  its  own  this  amended  and  modified  decree, 
and  declared  it  to  be  the  law  for  the  Church  in  the  United  States, 
adding  a recommendation  that  “ Judges  of  Causes  ” should  be 
permanently  established  by  the  bishops.  It  reads  as  follows  : 

“Priests  to  whom  the  exercise  of  the  sacred  ministry  m’ay  have 
been  forbidden  by  sentence  of  the  Ordinary  have  no  right  to  ask 
support  from  him,  as  through  their  own  fault  they  have  rendered 
themselves  unfit  to  work  upon  the  missions  However,  that  all 
causes  of  complaint  may  be  taken  away,  the  Fathers  deem  it  pro- 
per that  the  Ordinaries  in  all  cases  of  delinquencies  of  clerics  or 
l^riests  follow  a determined  form  of  trial,  that  may  conform 
closely  to  the  requirements  of  the  Council  of  Trent  prescribed 
for  the  Visitation  of  the  Chapter,  viz  : 

“That  the  bishop  or  his  vicar-general,  with  authority  from  the 
bishop  should  choose  two  of  the  bishop’s  consultors,  of  those 
appointed  in  accord  with  the  decree  of  the  earlier  Council  of 
Baltimore  for  the  treatment  of  the  important  affairs  of  a diocese, 
nor  should  he  always  choose  the  same  two  ; and  they  are  to  assist 
the  bishop  when  he  is  to  sit  in  the  trial  of  a priest  charged  with 
a delinquency,  and  the  bishop’s  notary  must  also  be  there.  The 
two  deputies  shall,  however,  have  but  one  vote  ; but  either  of 
them  may  give  his  vote  in  unison  with  the  bishop.  But  if  both 
shall  differ  from  the  bishop  or  his  vicar  he  shall  from  the  afore- 
said consultors  choose  a third,  and  the  case  will  be  decided  in 
accord  with  the  opinion  enunciated  by  this  third  one.  If  it  should 
happen  that  all  three  consultors  chosen  by  the  Ordinary  should 
differ  from  his  opinion,  then  the  case  should  be  referred  to  the 
Metropolitan,  to  whom  will  be  given  a formal  document  properly 
sealed  and  authenticated  by  the  proper  signatures  stating  the 
whole  case  as  presented  in  the  lower  court ; he  will  inquire  into 
the  reasons  of  the  divergent  opinions,  and  give  his  decision.  If 
the  trial  should  be  of  one  who  is  a subject  of  the  Metropolitan, 
who  may  be  charged  with  a delinquency,  and  the  three  assessors 
(assistants)  of  the  Metropolitan  appointed  as  above  should  differ 
from  his  opinion,  the  appeal  should Ue  taken  to  the  senior  bishop 


52 


of  the  province,  whose  decision  will  settle  the  matter,  with  due 
regard  however  to  the  privileges  and  authority  of  the  Holy  See.  ” 

For  to  the  Holy  See  there  is  always  the  right  of  recourse  and 
appeal ; its  authority  and  decision  alone  can  be  considered  as 
giving  a really  final  settlement  of  any  question  either  of  dis- 
cipline, of  morals  or  of  faith.  I am  not  aware  of  any  cases  that 
were  ever  settled  in  accord  with  this  decree.  In  the  Eastern 
(and  probably  in  the  other)  provinces  of  the  country  it  never  took 
the  definite  practical  shape  of  the  appointment  of  permanent 
delegate  judges. 

An  Instruction  of  the  Propaganda  was  issued  in  July,  1878, 
which  positively  prescribed  “ the  procedure  to  be  followed  by  the 
bishops  of  the  United  States  of  North  America  in  examining  and 
deciding  criminal  and  disciplinary  causes  of  clerics.” 

It  is  well  to  remark  that  the  above  quoted  decree  of  the  Second 
Plenary  Council  of  Baltimore,  as  well  as  the  Propaganda  Instruc- 
tion of  1878,  were  framed  not  merely  for  the  trial  of  missionary 
rectors,  nor  are  they  confined  to  priests’  cases.  Both  also  men- 
tion the  causes  of  clerics,  indicating  that  all  clerics  who  are 
charged  with  delinquency  have  a right  to  a trial  before  the 
Ecclesiastical  Court  before  serious  chastisement  is  inflicted  upon 
them.  This  Instruction  of  the  Propaganda  did  not  contemplate 
the  establishment  of  a court  in  each  diocese  in  which  all  matters 
pertaining  to  the  clergy  were  to  be  tried  and  adjudged,  or  where 
the  complaints  of  one  cleric  against  another  were  to  be  sifted 
and  decided,  and  much  less  where  the  grievances  that  a priest 
might  have  against  his  bishop  were  to  be  weighed.  This  Instruc- 
tion was  given  to  the  bishops  by  the  Holj’’  See  to  fix  their  mode 
of  action  in  dealing  with  clerics  who  were  charged  with  crime  or 
any  misdeed  that  should  require  disciplining  or  chastisement  of 
a serious  nature.  Its  object  was  to  have  carried  out  certain 
forms,  the  observance  of  which  should  give  the  proper  oppor- 
tunity to  the  innocent  to  make  known  their  innocende,  lest  they 
should  be  improperly  subjected  to  punishment,  and  on  the  other 
hand  to  keep  the  proper  record  and  proofs  of  guilt ; so  that  the 
neglect  of  the  proper  forms  should  not  be  used  by  the  guilty,  as 
a means  of  escape  from  the  proper  correction  and  chastisement. 

There  was  no  attempt  made  in  this  instruction,  as  was  clearly 
afterward  made  known  in  a supplement  in  1879,  to  legislate  about 
or  alter  the  character  of  the  missions  as  defined  in  No.  125,  or  to 
weaken  or  change  the  juridicial  effects  mentioned  in  Nos.  77  or 
108  of  the  decrees  of  the  Second  Plenary  Council  of  Baltimore,  of 
the  removal  from  office  of  missionary  rectors.  In  other  words. 


53 


these  rectors  were  not  made  canonically  irremovable,  and  when 
deprived  juridically  of  the  exercise  of  their  ministry,  they  could 
not  claim  from  the  bishop  a right  to  maintenance,  from  the  obtain- 
ing of  which  they  had  debarred  themselves  by  fault  of  theirs 
proven  in  a proper  trial.  The  instruction,  hoAvever,  clearly  pre- 
supposes that  natural  equity  recognized  fully  by  the  Church 
alwaj's  secures  to  priests,  in  fact  to  all  clerics,  viz. : the  right  to 
be  protected  in  their  person,  their  honor  and  their  temporal  and 
spiritual  endowmeuts  from  all  caprice  or  whim,  and  much  more 
from  personal  dislikes,-  prejudice  or  hatred.  Clerics  are  with  a 
distinct  purpose  mentioned  by  the  Propaganda’s  Instructions,  and 
the  form  of  trial  for  a delinquency  is  laid  down  for  all  who  belong 
to  the  clerical  state.  This  right  is  not  extended  only  to  priests, 
nor  only  to  those  who  are  in  sacred  or  major  orders,  but  to  all 
clerics,  and  therefore  to  those  who  have  received  the  sacred  ton- 
sure  upwards  through  all  the  minor  and  major  grades  to  their 
complement  in  the  priesthood.  Undoubtedly  the  right  is  intensi- 
fied for  those  who  by  positive  law  of  the  Church  are  cut  off  from 
the  secular  state,  viz. : subdeacons  and  all  belonging  to  the  higher 
grades.  Any  one  who  has  received  the  sacred  tonsure  has  thereby 
been  admitted  by  the  proj^er  ecclesiastical  authority  into  the 
ecclesiastical  state,  because  he  has  undertaken  to  consider  the 
portion  of  the  Lord  as  his  inheritance,  and  has  started  out  with 
the  intention  of  going  forward  to  administer  at  the  Lord’s  altar 
as  far  as  he  will  be  found  worthy.  At  no  time  can  he  be  deprived 
of  any  of  the  rights  which  he  may  justly  have  acquired,  unless 
guilty  of  serious  delinquency,  and  therefore  not  without  a proper 
hearing  of  his  case,  and  the  form  of  this  hearing  was  provided  by 
the  Roman  Instruction  for  any  cleric  as  well  as  for  a priest.  Sub- 
deaconship,  however,  is  of  such  a character  as  to  cut  off  the  or- 
dained from  the  secular  state  for  life,  and  in  the  United  States 
the  preliminary  of  the  reception  of  this  first  of  the  major  or 
sacred  orders  is  the  acceptance  of  the  title  of  the  mission,  which 
derives  its  force  from  the  oath  taken  by  him  to  devote  himself  in 
a special  diocese  or  vicariate  apostolic  to  the  care  of  souls,  whence 
there  devolves  upon  that  diocese  or  vicariate  the  obligation  of 
providing  him  wuth  the  necessary  means  of  subsistence  as  long  as 
it  is  not  juridically  proven  that  he  is  unworthy  of  exercising  the 
sacred  ministry. 

So  much  importance  is  attached  by  the  Propaganda  to  the  bi- 
lateral character  of  this  obligation,  that  in  the  Pontifical  Colleges 
under  its  direction  It  prohibits  the  dismissal  of  an  alumnus  or  one 
who  has  taken  the  missionary  oath,'  even  though  at  times  not  a 


54 


cleric,  from  the  college  under  any  pretence,  without  a written 
authorization  from  the  Cardinal  protector,  who  is  one  of  the  Car- 
dinals of  the  Propaganda,  if  the  college  be  located  anywhere  in 
Italy,  or  without  a similar  written  authorization  from  the  Aposto- 
lic Nuncio,  if  the  college  be  out  of  Italy.  This  is  a very  clear  proof 
of  the  equity  which  is  intended  should  underlie  all  church  dealings 
with  all  who  have  in  any  way  bound  themselves  to  her  service.  This 
same  principle  of  a thorough  investigation,  before  the  punish- 
ment, of  all  charges  made  against  any  cleric,  and  above  all  there- 
fore against  any  one  who  has  attained  the  vested  rights  of  Sacred 
Orders  is  always  obligatory  upon  the  rulers  of  the  Church. 

The  Koman  Instruction  of  1878  laid  down  an  excellent  way  of 
ascertaining  the  truth  of  any  charges  made  against  priests  or 
other  clerics.  This  was  the  appointment  of  five,  or  where  so 
many  could  not  be  had,  at  least  three  of  the  most  upright  priests 
who  should  also,  if  possible,  be  experts  in  canon  law,  whose 
business  it  should  be  to  thoroughly  sift  the  proofs  and  the  testi- 
monies in  favor  or  against  the  accused;  no  action  to  be  taken  if 
there  were  not  solid  grounds  for  the  charges.  This  concerned  all 
clerics  or  priests.  More  particular  and  detailed  attention  were 
naturally  to  be  given  where  a rector  was  to  be  removed  from  his 
position  of  rector,*  as  any  such  removal  in  the  eyes  of  the  public 
would  attract  very  great  notice  and  would  naturally  be  deemed  to 
presuppose  some  serious  misdeed  or  delinquency.  The  option 
was  always  to  be  afforded  the  rector  of  resigning  his  position 
rather  than  go  through  the  ordeal  of  a trial.  The  cause  therefore 
that  prompted  the  bishop  to  remove  him  was  to  be  clearly  set  be- 
fore him  to  allow  him  to  decide  whether  he  should  resign  or  not. 
If  he  should  determine  to  stand  trial,  the  bishop  was  to  appoint 
his  vicar-general  or  another  priest  to  make  out  the  charges  in 
writing,  with  the  statement  of  whatever  inquiries  had  been  made 
and  of  the  circumstances  that  led  up  to  the  trial. 


CHAPTEE  XII. 


The  Propaganda  instruction  of  1878  called  for  by  the  complaints  of  the  clergy 
that  no  trial  was  offered  them  when  chastisement  was  inflicted,  ’ Counsel 
must  be  admitted  in  any  trial.  Any  priest  in  good  standing  may  act  as 
counsel.  The  “Commission  of  Investigation”  superseded  by  the  regular 
episcopal  court  by  Instruction  of  1884.  . 

The  special  attention  required  by  the  Propaganda  Instruction 
of  1878  to  the  case  of  a missionary  rector  whose  deposition  from 
his  office  might  be  aimed ‘at  through  the  bringing  of  charges 


55 


against  him  was  founded  on  the  fact  of  such  deposition  bringing 
a very  severe  and  permanent  disgrace  upon  the  accused.  It  may 
be  assumed  as  a certainty  that  such  deposition,  involving  disgrace, 
wdll  never  be  allowed  by  the  law  without  a formal  trial.  Yet  the 
infliction  of  an}^  serious  punishment  upon  any  cleric,  and  much 
more  upon  a priest  required,  in  accord  wdth  this  Koman  Instruc- 
tion, the  substantial  observance  of  the  same  form  of  trial.  Before 
this  trial  was  begun  five,  or  where  so  many  could  not  be  had,  at 
least  three  uj)right  priests.  Versed  in  canon  law,  were  to  investi- 
gate whether  there  was  ground  for  such  action,  they  were  to  in- 
vestigate the  facts  alleged  against  the  cleric  or  priest,  examine 
through  their  chairman  the  witnesses  for  and  against,  give  a full 
hearing  to  the  accused  in  his  own  behalf;  and  then  they  were  to 
determine  w^hether  anything  further  was  to  be  done.  It  was  only 
in  case  the  majority  of  the  Investigating  Commission  decided  that 
there  was  sufficient  evidence  of  the  alleged  charges  that  any 
further  step  should  be  taken.  Their  office  gave  to  the  Commission 
of  Investigation  a strictly  judicial  character,  their  investigation 
being  directed  to  aid  the  bishop  in  giving  his  final  decision.  Then 
it  was  laid  down  that  the  decision  of  a majority  of  the  Commis- 
sion that  there  was  sufficient  .ground  work  for  the  charges,  was 
necessary  to  allow  further  action  upon  the  part  of  the  bishop.  It 
they  were  persuaded  that  there  was  sufficient  foundation  for  the 
charges,  they  w^ere  to  proceed  till  they  were  morally  certain  of 
their  truth.  Even  then  they  were  not  to  come  to  any  conclusion 
before  putting  in  wTiting  and  separately  the  grounds  on  which 
their  distinct  and  separate  opinion  was  formed;  and  only  then 
w'ere  they  to  compare  notes  and  to  weigh  each  other’s  arguments 
for  a conviction  ; the  opinions  kept  distinct  and  separate  with 
their  variety  of  grounds  and  motives  were  to  be  a part  of  the  acts 
wffiich  w^ere  to  be  submitted  to  the  bishop  for  his  final  decision. 
The  bishop’s  decision  to  be  lawful  must  be  shown  to  be  founded 
on  the  acts  and  the  evidence  that  appears  in  the  acts;  otherwise 
it  would  be  null. 

It  seems  incredible  that  anybody  should  suspect  that  counsel 
might  be  refused  to  the  accused  in  any  trial,  and  much  more 
where  punishment  is  to  be  inflicted.  It  can  hardly  be  believed 
that  any  one  should  strive  to  prevent  perfect  freedom  in  the 
choice  of  counsel.  If  the  accused  chooses  to  select  poor  aid,  he 
must  be  responsible  for  his  choice;  if  the  lawyer  were  foolish 
enough  at  any  time  to  show  contempt  of  court,  the  judge  has 
easily  the  powder  to  prevent  the  outrage.  Any  priest  in  good 
standing  called  upon  by  the  accused  to  aid  him  should  at  once  be 


56 


accepted  by  any  fair-minded  judge;  and  the  rejection  of  any  one 
as  counsel  without  a very  serious  reason  is  very  strong  evidence 
that  passion,  dislike  and  prejudice,  not  zeal  for  souls  or  God’s- 
glory,  are  at  the  bottom  of  the  charges  made.  It  is  very  impor- 
tant that  an  accused  person  should  be  always  authorized  to  take 
as  counsel  one  in  whom  he  places  perfect  confidence.  It  were 
absurd  for  him  to  have  to  rely  for  his  defence  upon  one  suggested 
to  him  by  the  judge,  especially  where  the  judge  is  at  the  same 
time  the  one  to  spur  on  the  prosecution.  Any  acceptance  or  ap- 
proval ascribed  to  the  bishop  in  this  selection  must  necessarily 
be  limited  to  the  mere  right  of  rejecting  one,  whose  name  may  be 
offered  in  open  derision  of  the  court.  The  Propaganda  took  the 
precaution  in  a supplement  to  its  Instruction  to  assert  the  right 
of  the  accused  to  the  aid  of  counsel,  which,  strange  to  say,  had 
actually  been  called  into  question. 

In  case  the  accused  should  fail  to  answer  to  a formal  citation 
before  the  court,  provision  was  made  that  a second  formal  notice 
should  be  sent  him  to  appear  within  a fixed  and  reasonable  time, 
and  then,  if  he  failed  to  answer  and  had  no  sufficient  and  legiti- 
mate excuse  for  his  absence,  he  might  be  condemned  as  contuma- 
cious. 

There  was  only  one  exceptional  case  in  which  it  was  allowed  to* 
bishops  to  dispense  with  the  formal  trial,  viz.,  when  a shepherd 
or  pastor  of  souls  had  practically  become  a wolf  to  destroy  a 
member  or  members  of  the  flock,  and  had  succeeded  in  covering' 
up  his  tracks  in  such  a way  as  to  prevent  his  misdeeds  being' 
proven  in  a juridical  manner  before  a court  of  law,  though  the* 
bishop  might  be  able  to  obtain  positive  knowledge  of  them,  which 
could  not  be  used  in  a trial,  for  instance,  because  the  witnesses 
through  fear  of  personal  harm  to  themselves  refused  to  appear 
publicly  before  the  ecclesiastical  court,  or  because  the  public 
manifestation  of  a secret  delinquency,  though  sufficiently  known 
to  the  bishop,  might  shock  the  faithful.  The  bishop  is  directed  to* 
have  not  only  moral  certainty  of  the  truth  of  the  alleged  charges,, 
but  such  sufficient  evidence  as  will  be  likely  to  convince  as  well 
the  higher  authority,  to  whom  recourse  may  be  had  by  the  accused 
when  the  punishment  is  inflicted  upon  him.  This  exceptional 
judgment  is  said  to  emanate  “ from  the  informed  conscience,”  or 
for  reasons  known  to  the  bishop ; and  in  this  exceptional  sentence 
the  bishop  is  obliged  to  state  that  he  is  pronouncing  it  in  virtue 
of  the  exceptional  legislation  for  this  special  purpose  made  by  tho 
Council  of  Trent.  The  only  sentence  that  can  be  pronounced  in 
accord  with  this  special  legislation  is  a suspension  from  the  exer- 


57 


cise  of  orders  already  acquired,  or  a prohibition  to  ascend  to  a 
higher  grade.  It  must  be  limited  as  to  time,  which  must  be 
stated  in  the  sentence.  The  motive  of  the  sentence  sliiould  ordi- 
narily, but  not  necessarily,  be  made  known  to  the  suspended  one. 
There  is  not  in  this  matter  the  ordinary  appeal  to  the  usual 
next  higher  court,  but  the  Holy  See  insists  upon  the  declaration 
that  any  one  accused  or  punished  has  a right,  if  aggrieved,  to 
have  recourse  to  this  Supreme  Tribunal,  which  will  always  require 
clear  evidence  of  the  guilt  for  which  the  chastisement  is  inflicted. 
It  is  also  understood  clearly  that  this  extra  judicial  sentence  may 
never  be  inflicted  where  there  is  any  publicity  of  any  kind  about 
the  charge  brought,  for  then  the  formal  trial  is  required,  when 
the  requisite  evidence  sufficient  to  induce  moral  certainty  from 
the  acts  of  the  court  must  be  had  to  lead  to  a sentence  of  punish- 
ment. 

We  see  wh9,t  safeguards  the  Church  insists  upon  for  the  care  of 
clerics’  reputation  in  the  one  exceptional  case,  where  it  permits 
exceptional  legislation  deemed  necessary  for  the  good  of  souls,, 
which  is  the  supreme  guide  of  the  Church’s  laws. 

Even  where  a charge  is  notoriously  true,  the  Church  does  not 
wish  it  to  be  punished,  till  the  truth  of  this  very  notoriety  is 
properly  sifted  in  a juridical  form.  Not  merely  the  notoriety  of 
a fact  must  be  proved,  but  the  notoriety  that  the  alleged  fact  is 
a delinquency  must  be  clearly  evidenced. 

In  the  case  of  a sentence  by  a bishop  ‘^from  his  informed 
conscience,”  or  for  reasons  known  to  himself,  the  only  penalty 
which  he  is  allowed  to  inflict  is  the  suspension  from  the  exercise 
of  the  ministry.  This  does  not  at  all  imply  that  the  person  is  re- 
moved from  his  office  of  missionary  rector  or  any  other  position 
which  he  may  hold,  but  only  suspends  for  a time  to  be  specified 
from  some  portion,  which  must  also  be  mentioned,  of  the  exercise 
of  his  spiritual  functions.  Provision  is  to  be  made  for  a sub- 
stitute in  whatever  portion  may  be  curtailed  from  his  spiritual 
faculties.  Under  no  consideration  can  an  irremovable  rector  be 
removed  from  his  rectorship  by  any  such  procedure  ; for  this  re- 
moval there  must  always  be  the  formal  trial.  Yet  even  the 
irremovable  rector  might  become  subject  under  the  given  con- 
ditions to  this  temporary  suspension  from  the  exercise  of  the 
spiritual  faculties,  from  the  informed  conscience  of  the  bishop  ; 
and  then  an  administrator  may  be  appointed  for  the  interval. 

The  form  of  investigation  or  trial  that  has  just  been  considered 
had  been  granted  to  England  as  early  as  the  meeting  of  the  first 
Provincial  Council  of  Westminster  in  1852.  The  Propaganda 


58 


extended  it  to  the  United  States  in  1878,  alleging*  that  the  form 
that  had  been  adopted  by  the  Second  Plenary  Council  of 
Baltimore  had  been  found  insufficient  to  put  an  end  to  the  com- 
j)laints  of  the  clergy  that  a proper  investigation  had  not  been 
made  before  they  were  subjected  to  great  disgrace,  humiliation 
and  very  severe  punishment,  while  on  the  other  hand  when 
recourse  was  had  to  the  Holy  See  about  these  complaints,  and  the 
Holy  See  had  sought  for  the  grounds  on  which  they  had  been 
punished,  no  proiDer  records  had  been  kept  of  the  alleged  offences 
or  of  the  evidence  which  had  been  brought  against  them;  hence 
the  Holy  See  found  itself  forced  on  this  ground  alone,  to  require 
their  re-instatement,  and  sometimes  even  the  guilty  were  thus  en- 
abled to  escape  their  just  deserts. 

The  fact  was  that  the  form  of  the  Second  Plenary  Council  of 
Baltimore  had  not  in  reality  been  put  into  execution  at  all 
throughout  the  immense  majority  of  the  dioceses  of  the  country. 
As  a matter  of  fact,  in  this  country  the  limitations  which  the 
canon  law  places  upon  the  power  of  bishops  had  never  been 
realized  by  them  and  nowhere  else  has  there  ever  been  such 
dependence  upon  the  bishops’  will  as  in  this  country.  Borne 
found  it  necessary  to  take  occasion  from  the  frequent  complaints 
against  arbitrary  measures  to  lay  down  a precise  form,  no  longer 
of  their  own  option,  but  made  out  in  accord  with  the  recognized 
equity  of  the  Church,  to  which  all  bishops  should  be  obliged  to 
conform  whenever  they  undertook  to  discipline  or  chastise  any 
cleric  of  whatsoever  grade,  this  obligation  naturally  becoming  the 
greater  in  proportion  to  the  greater  importance  of  the  grade  and 
the  vested  rights  acquired  by  those  who  were  to  be  brought  to 
an  account. 

It  is  well  to  state  that  a great  advantage  in  the  form  presented 
by  the  Propaganda  was  the  selection  as  prescribed  of  the  Com- 
mission of  Investigation  by  the  bishop  after  an  opportunity  was 
given  to  the  clergy  to  suggest  the  candidates,  and  the  bishop  was 
supposed  only  to  reject  the  nominees  of  the  clergy  if  he  had  good 
reasons  thoroughly  known  to  himself  for  the  rejection.  It  was  ex- 
pressly provided  that  if  the  first  court  decided  against  the  accused 
he  had  a right  of  apjDeal  to  the  Metropolitan,  whose  tribunal,  ap- 
pointed in  the  same  wa^^  was  to  use  the  same  method  for  investigat- 
ing the  charges  and  adjudicating  upon  them.  An  appeal  again  from 
the  Metropolitan’s  decision  to  the  Propaganda  Avas  always  reputed 
to  be  proper  and  lawful.  In  case  the  first  trial  took  place  in  the 
Metropolitan  Court,  an  appeal  from  it  to  the  nearest  Metropolitan, 
and  then  to  the  Propaganda  was  supposed  to  be  the  ordinary 


59 


■course.  Throughout  this  country  this  instruction  is  allowed  to 
be  still  in  force,  wherever  it  has  not  been  siq^erseded  by  the 
regular  canonical  erection  of  the  Diocesan  Curia  or  Court,  which 
carries  with  it  a new  form  of  procedure  in  accord  with  the  canon 
law’  of  the  church.  The  Curia  or  Ecclesiastical  Court  is  being 
rapidly  introduced  into  almost  all  the  dioceses  throughout  the 
country  in  accord  with  a special  instruction  from  Kome,  issued  in 
1884  for  adoption  by  the  Third  Plenary  Council  of  Baltimore. 


CHAPTEK  XIII. 

Cardinal  Pecci.,  Bishop  of  Perugia,  originates  a summary  procedure  for  trials 
of  clerics.  Pope  Leo  XIII  approves  the  extension  of  this  form  of  procedure 
to  Italy,  France  and  the  United  States.  Strict  adherence  to  the  form  of 
procedure  necessary  to  impose  any  obligation  of  submission  on  the  part  of 
the  accused. 

The  Propaganda  instructed  the  bishops  of  the  Third  Plenary 
Council  of  Baltimore  to  substitute  wherever  it  w^as  possible,  for 
the  former  procedure  in  clerical  trials  imposed  upon  them  in  1878 
another  method  of  procedure  which  is  founded  upon  the  canon- 
ical establishment  of  the  regular  Curia  or  Ecclesiastical  Court  in 
each  diocese.  This  method  commended  itself  greatly  to  the  bish- 
ops of  Italy  because  of  its  august  source  and  originator,  who  was 
no  less  a personage  tlian  the  present  Pope,  Leo  XIII,  though  it 
was  framed  by  him  whilst  Bishop  of  Perugia.  He  thought  that 
during  the  present  friction  between  the  Church  and  the  civil 
authorities  of  Italy,  the  strict  adherance  to  the  prolonged  forms 
required  by  Canon  Law  for  the  trial  of  clerics  w^as  liable  to  be 
hampered  by  probable  conflicts  with  claims  made  by  the  civil 
authorities  and  very  often  would  lead  to  ■ the  preventing 
by  the  civil  authority  under  one  specious  pretext  or  another,  of 
the  trials  of  clergymen  whom  the  civil  authorities  might  choose 
for  any  reason  to  favor.  It  w^as  suspected  that  clergymen  per- 
haps worthy  of  censure,  might  shield  themselves  then  behind  the 
usual  delays  allow’ed  by  the  Canon  Law  if  they  w^ere  not  in 
some  way  curtailed,  till  there  w’as  a good  opportunity  for  the 
civil  authorities  to  intervene.  He  hit  upon  a more  expeditious 
and  summary  procedure,  which  would  contain  all  the  substantial 
forms  Avhich  he  thought  were  required  by  equity  and  justice, 
w^hilst  a number  of  technical  details  were  eliminated,  whose 
effect  seemed  more  to  prolong  the  trial,  than  to  promote  the 
interests  of  justice,  whilst  the  delay  might  cause  serious  detri- 
ment to  souls.  'When  the  Cardinal  Bishop  of  Perugia  was 


GO 


elevated  to  the  Chair  of  Peter,  attention  was  called  to  this  form 
of  procedure  which  had  guided  him  in  dealing  with  the  clerics  of 
his  former  diocese,  and  other  bishops  of  Italy  wished  to  make  use 
of  it  for  their  diocese. 

The  Congregation  of  Bishops  and  Begulars,  which  has  under 
its  control  the  management  of  the  principal  Ecclesiastical  matters 
of  officially-called  Catholic  countries,  determined,  with  the  sanc- 
tion of  the  Holy  Father,  to  confer  upon  all  the  bishops  of  Italy 
the  right  to  substitute  this  form  of  procedure,  for  the  lengthy 
forms  of  Canon  Law  where  it  was  supposed  that  these  could  not 
be  properly  carried  out.  The  Congregation  in  its  publication  of 
this  form  of  iDrocedure  in  Italian  on  June  11th,  1880,  makes  this 
preliminary  statement : 

“This  Sacred  Congregation  of  Bishops  and  Regulars  after 
maturely  considering  the  present  condition  of  the  Church  which 
is  impeded  almost  eveiTwhere  from  bringing  her  external  action 
to  bear  on  Ecclesiastical  things  and  persons,  and  taking  also  into- 
account  the  lack  of  proper  facilities  for  the  regular  organization 
of  the  Ecclesiastical  Courts,  has  decided  to  expressly  authorize 
the  bishops  to  use  a more  summary  form  of  procedure  in  the 
exercise  of  their  authority  to  discipline  clerics,  and  in  order  that 
every  right  of  justice  may  be  secure,  and  canonical  regularity  and 
uniformity  of  procedure  be  maintained,  it  considers  proper  to  ap- 
point the  following  rules  to  which  the  Ecclesiastical  Courts  must 
adhere.” 

We  are  told  in  a letter  signed  by  the  Cardinal  Prefect  and  the 
Secretaiw  of  this  Congregation,  dated  January  14,  1882,  that  some 
bishops  of  France  requested  that  this  same  method  of  procedure 
be  granted  for  use  in  their  dioceses,  and  that  the  Holy  Father  then 
extended  the  right  to  use  it  to  all  the  bishops  of  France.  At  the 
meeting  of  the  Archbishops  of  the  United  States,  held  in  Rome,, 
in  November,  1883,  to  receive  the  jireliminary  instructions  from 
the  Holy  See  which  were  to  guide  them  in  framing  the  legislation 
for  the  Church  in  the  United  States  in  the  Plenary  Council  which 
was  to  be  held  in  the  following  year,  the  Committee  of  Cardinals 
of  the  Propaganda  presented  to  them  this  same  form  of  procedure 
as  a substitute  for  the  instruction  which  had  been  given  for  their 
guidance  in  1878.  With  some  modifications  suggested  by  the 
American  archbishops  and  bishops,  to  which  our  attention  will  be 
naturally  called,  this  new  procedure  is  prescribed,  according  to  its 
title,  as  “ the  established  form  for  taking  cognizance  of  and  decid- 
ing the  cases  of  delinquency  of  and  for  the  disciplining  of  clerics 
in  the  United  States  of  North  America.”  Hence,  while  for  Italy 


()1 


and  France  this  new  form  was  somewhat  of  a departure  from  the 
ancient  and  universal  usage,  it  had  the  effect  of  bringing  the  far 
greater  part  of  the  dioceses  of  the  United  States  into  greater  con- 
formity with  the  universal  law  by  the  positive  requirement  of  the 
establishment  of  the  Curia  or  Ecclesiastical  Court  in  each  diocese. 
The  only  means  left  to  any  bishoi^  to  escape  this  requirement  was 
to  make  a special  petition  to  the  Holy  See  for  exemption,  detail- 
ing the  reasons  which  prompted  the  request  for  such  exceptional 
privilege.  Even  then  the  understanding  must  be  that  for  that 
diocese  the  prescriptions  of  the  instruction  of  1878,  with  its  sup- 
plement of  1879,  were  to  be  -held  in  force. 

It  is  well,  also,  to  note  that  while  this  Instruction  for  Italy  and 
France  was  a departure  from  the  universal  canon  law  the  very 
<ilear  statement  concerning  this  Instruction  was  given  to  the 
Italian  bishops  “that  in  the  imposition  of  penal  measures  the 
Eight  Rev.  Ordinaries  will  observe  that  it  is  not  intended  by  this 
Instruction  to  derogate  from  the  solemnity  of  judicial  proceed- 
ings, as  required  by  the  Sacred  Canons,  Apostolic  Constitutions 
.and  other  ecclesiastical  regulations,  whenever  these  can  be  freely 
and  fully  carried  out.  This  summary  method  is  only  granted  to 
provide  for  those  cases  and  those  courts  in  which  it  would  be 
^either  impossible  or  it  was  not  believed  to  be  expedient  to  have 
recourse  to  the  more  solemn  proceedings.”  There  was  no  need  of 
injecting  this  explanation  into  the  decree  as  imposed  upon  the 
bishops  of  the  United  States,  because  the  solemn  forms  had  never 
been  in  use  at  all  in  this  country.  It  was  only,  however,  because 
of  the  difficulties  that  in  modern  society  everywhere  seem  to  beset 
the  free  action  of  the  Church,  that  the  Holy  See  would  counte- 
nance any  departure  from  the  ancient  usages  of  justice  found 
important  and  necessary  in  the  course  of  time,  and  approved  by 
experience. 

But  it  must  be  remembered  that  where  such  modifications  are 
admitted  on  account  of  the  circumstances  of  different  times  and 
places,  still  the  greatest  importance  is  to  be  given  to  the  principle 
involved  in  the  rule  “ that  the  decrees  of  the  canons  are  to  be 
obeyed,  and  no  one  has  the  right  in  Ecclesiastical  trials  or  de- 
cisions to  follow  his  OAvn  opinions,  but  must  be  guided  by  the 
authority  of  the  canons.”  Such  is  the  emphatic  principle  laid 
down  for  all  judges  by  Canon  Law.  (Dec.  Lib.  1,  Tit.  1,  C.  1).  No 
one  has  a right  to  take  his  own  wisdom,  much  less  his  own  con- 
ceits as  the  guide  for  the  execution  of  the  authoritatively  modi- 
fied methods  of  procedure,  any  more  than  he  had  in  the  execution 
of  the  ancient  rules  in  their  entirety.  Rather  more  diligence 


62 


must  be  shown  in  the  strict  observance  of  the  modihed  forms, 
because  the  modification  itself  is  considered  odious  by  the  Holy 
See,  and  forced  upon  it  by  circumstances  which  it  laments,  pre- 
cisely because  they  have  the  appearance  of  requiring  the  absence 
of  certain  forms,  which  experience  had  sanctioned,  to  avoid  the 
probability  of  injustice  being  done.  The  Church  has  always  real- 
ized the  principle  that  it  is  better  for  the  guilty  at  times  to  escape, 
than  for  the  innocent  to  be  condemned  unjustl3^  Hence  she  will 
always  insist  upon  certain  substantial  forms,  whose  observance 
cannot  be  dispensed  with,  without  the  gravest  fear  and  suspicion 
of  the  lack  of  equity  and  fairness.  Wherever  their  observance  is 
denied,  personal  motives  for  the  accusation  may  justly  be  sur- 
mised. In  fact,  wherever  a trial  is  not  offered  to  an  accused  one 
even  without  any  urgency  upon  his  part  to  seek  it,  there  is  good 
ground  for  challenging  the  justice  of  and  for  finding  fault  with 
the  superior  who  threatens,  and  much  more  if  he  inflicts  punish- 
ment without  it.  Any  sentence  passed  in  this  way  can  have  no 
effect  upon  the  conscience  of  the  accused,  and  whilst  outwardly 
he  may  deem  it  advisable  and  more  prudent  to  acquiesce  in  the 
result,  yet  by  the  illegal  action  a wound  is  inflicted  upon  the  repu- 
tation of  Church  authorities  for  equity  Avhich  even  the  fullest 
reparation  afterwards  made  can  never  fully  heal. 

There  are  many  special  reasons  why  in  this  country  for  the  wel- 
fare of  the  Church  strict  adherence  to  the  substantial  forms  of  the 
prescribed  trial  will  always  be  found  to  be  of  the  gravest  impor- 
tance. The  natural  temperament  of  the  people  is  opposed  to  any 
appearance  of  arbitrary  treatment.  This  same  sentiment  has  been 
deeply  ingrained  in  the  early  training  of  priests  who  till  the  years 
of  manhood  have  been  associated  with  the  everyday  thoughts  and 
feelings  of  the  people.  All  without  exception  are  thoroughly  im- 
bued with  the  feeling  that  no  crime  or  delinquency  can  be  prop- 
erly punished  till  clearly  proven.  We  are  also  to  keep  in  mind 
the  recognition  of  the  principle  that  it  is  better  for  society  itself 
that  many  guilty  should  escape  unpunished,  than  that  one  inno- 
cent one  be  unjustly  or  unduly  punished.  The  absence  of  the 
proper  method  for  proving  the  guilt  of  the  accused  is  sure  to  pro- 
duce sympathy  with  him,  and  bring  to  his  side  men  who  might 
otherwise  have.no  sympathy  with  his  cause. 

The  importance  of  the  greatest  manifestation  by  an  Ecclesiasti- 
cal Judge  of  the  desire  to  give  the  accused  a fair  chance  to  show 
his  innocence,  or  even  to  extenuate  his  guilt  is  increased  in  this 
country  by  the  almost  excessive  protection  given  to  the  accused 
by  the  civil  law  and  practice.  This  cannot  but'  create  a feeling  on 


63 


tlie  part  of  the  community  that  there  is  more  dislike  than  equity 
shown  if  the  forms  of  Ecclesiastical  procedure  so  evidently  framed 
to  give  every  advantage  for  the  detection  of  delinquency  to  the 
Ecclesiastical  Judge,  are  not  properly  followed.  In  the  Ecclesi- 
astical procedure  there  is  very  slight  chance  given  to  the  guilty 
to  escape  punishment. 


xiy. 

Bishops  are  primarily  shepherds,  and  secondarily  judges.  The  new  form  of 
procedure  explained.  The  duties  and  rights  of  counsel  for  the  accused 
clearly  announced.  The  Procurator  fiscalis  must  he  an  expert  in  law  and 
in  sifting  testimony. 

St.  Bernard  gave  a very  useful  standard  for  the  different  positions 
in  the  ecclesiastical  life,  in  allotting  them  according  to  the  various 
dispositions  of  men.  When  told  that  such  a one  was  pious,  the 
saint  remarked  : “ He  will  do  splendidly  for  the  monastery.”  When 
told  that  another  was  learned,  he  commended  him  for  the  position 
of  teacher  and  preacher  ; when  a third  was  spoken  of  as  prudent, 
“There’s  a proper  person,”  he  remarked,  “for  a bishopric.” 

This  explains  the  traditional  preference  in  the  Church,  of  a 
Doctor  of  Laws  to  a Doctor  of  Theology  in  the  candidature  for  a 
bishopric.  Knowledge  of  the  laws  of  the  Church  is  ordinarily 
better  for  the  administration  of  a diocese  than  a deep  knowledge 
of  scientific  theology.  A bishop  is,  however,  always  supposed  to  be 
a Doctor  of  Theology  and  of  the  Law,  and  if  he  has  not  obtained 
these  degrees,  he  is  expected  to  be  very  learned  in  both. 
Among  the  questions  to  be  answered  concerning  candidates  for  a 
bishopric  in  the  Lnited  States,  are  where  he  studied  and  what 
degrees  he  has  attained,  and  if  he  has  been  a professor,  and  in 
what  department. 

The  position  alone  of  Judge,  which  is  an  integral  part  of  the 
bishop’s  office  in  his  diocese,  points  directly  to  the  importance  of 
his  being  thoroughly  conversant  with  the  jurisprudence  of  the 
Church. 

Yet  while  Judge  he  is  supposed  never  to  forget  that  the  essence 
of  his  office  is  that  of  chief  shepherd,  appointed  to  feed  the  lambs 
and  the  sheep  of  the  flock,  and  the  power  to  govern  and  correct 
is  only  derived  from  the  duty  of  love  and  self-sacrifice  imposed 
upon  him  in  behalf  of  the  flock.  His  most  earnest  endeavors  when 
forced  to  give  his  attention  to  the  defects  of  his  co-laborers  in  the 
care  of  the  flock,  are  to  be  used  to  interest  them  in  the  care  of  the 
sheep,  and  impress  upon  them  the  importance  of  greater  watch- 


64 


fulness  and  self-denial  because  of  the  damage  likel}"  to  come  to  the 
dock,  in  whose  welfare  they  are  supposed  to  be  all  earnestl}" 
interested,  though  upon  his  shoulders  a greater  and  universal 
responsibility  has  been  laid.  As  St.  Jerome  ( Apud  Gratianum  can 
7.  dis.  95),  remarks  : ‘‘Bishops  are  to  remember  that  they  are 
23riests,  not  lords.  They  are  to  honor  clerics  as  clerics,  that  the 
clerics  may  give  to  them  the  honor  due  to  bishops.  The  sa^dng  of 
the  orator  Domitius  is  famous:  ‘ AVhy  Shall  I honor  thee  as  prince 
if  thou  honorest  not  me  as  senator.’  ” 

The  Episcopal  crozier  is  recognized  as  the  symbol  of  pastoral, 
not  of  231'incely  rule.  The  bisho2)’s  duty  is  as  St.  Bernard  describes 
it  (lib.  3 de  consid.),  “to  convert  to  the  faith  the  faithless,  to  avoid 
alienating  the  faithful,  to  direct  those  astray  into  the  right  path, 
to  recall  the  mistaken  to  the  truth,  to  reason  with  those  who  are 
misleading  others,  to  work  for  their  amendment  if  this  be  in  their 
2)ower,  and  when  this  is  found  impossible  to  cut  them  off  from 
doing  harm  to  others.” 

This  pastoral  duty  involves  the  watching  over  the  conduct  of  the 
clergy  and  the  i)reventing  and  eliminating  abuses.  In  the  direct 
joastoral  work  much  is  left  to  the  bishop’s  discretion,  which  is 
jDresumed  to  be  guided  by  a genuine  love  of  his  co-laborers  and  of 
the  flock,  and  to  be  alien  from  any  petty  interest  or  unkindness. 
Before  even  attempting  to  admonish  or  to  suggest  anj^  spiritual 
remedyfor  asup2)osedeYil,  he  is  required  explicity  by  the  Instruc- 
tion for  the  New  Mode  of  Procedure  for  Disclipining  Clerics,  to 
make  a thorough  investigation  concerning  the  truth  of  any  allega- 
tion made.  Certain  prescribed  ways  must  be  followed  to  insure 
the  impartiality  of  even  this  preliminary  investigation.  Nothing 
is  more  likely  or  calculated  to  wound  an  honorable  mind  than  a 
warning  seriously  given  by  a superior,  where  there  was  no  ground 
for  such  action.  Charges  springing  from  anonymous  persons 
should  almost  invariably  be  thrown  into  the  waste  basket.  State- 
ments of  talkative,  spiteful  and  easily-faultfinding  persons  are  to 
be  brushed  aside,  especially  if  made  against  one  whose  life  has 
been  hitherto  irreproachable. 

There  may  at  times  be  suspicious  circumstances,  which  .a  frank 
talk  can  easily  explain  away,  or  even  if  imprudence  has  allowed 
rumor  to  wag  its  tongue,  a proper  private  really  fraternal  or 
2)aternal  caution  to  avoid  such  circumstances  for  the  future  is 
prescribed.  It  is  only  when  the  friendly  notice  will  not  be  heeded 
that  the  legal  caution  should  be  applied.  The  legal  forms  of  pro- 
cedure are  required  whenever  any  formal  punishment  is  sought  to 
be  legally  inflicted  or  before  any  legal  mandate  restricting  his 


65 


liberty,  imposed  for  tlie  purpose  of  disciplining  him,  can  be  prop- 
erly imposed. 

This  mandate  must  be  in  legal  form,  and  the  nature  of  the 
delinquency  to  be  avoided  must  be  clearly  stated  as  well  as  the 
special  punishment  that  should  be  the  result  of  disobedience. 
Whenever  any  punishment  is  inflicted  without  the  observance  at 
least  of  this  preliminary  form,  it  is  an  abuse  of  authority. 

Any  one  who  deems  that  there  is  no  sufficient  ground  for  the 
imposition  of  such  special  restriction  upon  him,  has  the  usual  right 
of  judicial  appeal.  No  such  restriction  as  a punishment  can  be  legally 
imposed  extra-judicially.  As  soon  as  there  is  serious  intention  of 
inflicting  chastisement  of  any  kind,  at  once  the  legal  forms  must 
be  brought  into  requisition.  A formal  citation  with  an  accurate 
description  of  the  charges  made  is  a necessary  preliminary.  This 
statement  of  the  charges  may  be  omitted  only  if  there  were  good 
ground  to  suspect  that  the  cited  one  might  make  use  of  the  docu- 
ment to  involve  the  Judge  in  some  civil  suit  say  for  defamation  of 
character  or  libel.  Outside  of  such  an  unlikely  case,  the  charges 
are  at  once  to  be  made  known  in  the  citation,  so  that  when  the 
accused  appears  he  may  have  had  the  opportunity  of  taking  legal 
advice,  and  may  determine  how  to  plead.  If  the  Judge  had 
thought  it  a case  wherein  it  was  advisable  not  to  detail  in  writing 
the  charges  made,  he  may  put  off  his  plea  till  he  has  time  to 
examine  the  charges  and  take  advice.  The  Judge  will  then  fix  the 
time  for  his  next  appearance  with  his  reply.  This  new  Roman 
Instruction  has  peremptorily  safeguarded  the  natural  right  of  the 
accused  to  the  aid  of  counsel,  by  not  only  in  so  many  words  recog- 
nizing it,  but  by  insisting  that  the  Judge  will  appoint  counsel  who 
will  undertake  the  defence,  if  the  accused  should  unadvisedly 
refuse  to  select  an  advocate.  The  instruction  as  found  in  the 
appendix  of  the  Third  Plenary  Council  allows  the  aid  not  only  of 
a priest  but  even  of  a layman  as  advocate. 

Pirrhing  (Lib.  I.  Deer.,  tit.  XXXVIIL,  §1)  says  of  an  advocate’s 
position  : “ An  advocate  is  properly  one  who  undertakes  the  case 

of  another  who  is  present  at  the  trial,  and  offers  him  protection 
and  defence.  . . An  advocate’s  position  is  noble,  public,  honor- 

able and  enjoying  many  privileges. 

§ III.  “It  is  the  advocate’s  duty  to  make  clear  the  merits  of  his 
client’s  case  and  to  bring  forth  in  the  trial  whatever  in  law  or  in 
the  facts  tells  for  his  client,  and  to  point  out  the  various  meanings 
of  the  same  fact,  and  to  indicate  how  far  they  may  be  used;  he  is 
to  avoid  insults.” 


66 


Wherever  only  justice  is  sought,  every  facility  is  given  the 
lawyer  for  the  accused;  but  to-day  the  lawyers’  days  are  few  and 
evil,  and  he  has  been  lowered  from  his  high  estate  to  be  reputed 
among  a low  and  hateful  brood,  subject  to  the  suspicion  of  being* 
intent  only  upon  evil.  However,  the  law  itself  is  more  generous 
toward  the  advocate,  and  the  new  method  of  procedure  (in  article 
32d),  requires  that  proper  access  be  given  to  the  counsel  to  all 
the  acts  and  minutes  of  the  proceedings,  begun  or  advanced,  that 
they  may  serve  as  a guide  to  him  in  the  defence  of  his  client;  and 
he  is  also  at  liberty  to  put  in  an  explanation  even  before  the  trial 
has  begun,  to  save  his  client  from  useless  vexation.  A special 
clause  was  added  in  the  American  which  is  not  found  in  the  Italian 
exposition  of  the  new  method  of  procedure,  one  that  was  evidently 
not  needed  where  experience  had  emphasized  the  rights  of  the 
accused.  In  article  33d  the  counsel  of  the  accused  is  expressly 
authorized  to  inspect  and  give  a written  answer  to  the  final  con- 
clusions of  the  prosecutor,  before  they  are  handed  in  to  the  j udge 
for  his  sentence. 

It  evidently  has  been  found  necessary  by  the  Roman  authorities 
to  reiterate  and  reaffirm  strongly  the  rights  of  the  accused’s 
counsel,  lest  the}"  should  be  jeopardized  even  in  the  incipient  exe- 
cution of  the  new  procedure  in  the  United  States,  where  they  had 
been  called  into  question  in  the  earlier  form  of  1878,  because  not 
expressly  mentioned. 

In  the  new  procedure  there  appears  on  the  scene  an  official, 
whose  duty  and  responsibilities  are  all  important.  By  the  former 
instruction  of  1878  the  bishop  was  to  be  represented  before  the 
Commission  of  Investigation  by  his  vicar-general  or  another  priest 
specially  deputed  for  the  purpose.  The  majority  of  the  commis- 
sion must  agree  that  the  statements  made  by  the  vicar  or  deputy, 
were  sufficiently  well  grounded  in  fact  and  law,  before  any  further 
action  was  taken  against  a cleric.  For  this  reason  the  members 
of  the  commission  were  to  be  selected  for  this  office  because  of 
their  uprightness  and  of  their  knowledge  of  Canon  Law. 

The  Procurator  fiscalis  or  official  prosecutor  is  now  invested  with 
the  main  duties,  devolving  on  both  the  vicar  or  deputy  and  on 
the  .whole  commission  before  the  trial  began.  He  is  now  a per- 
manently appointed  official  in  the  interests  of  the  law  and  of  jus- 
tice; he  may  not  be  removed  at  will,  but  only  for  serious  cause. 
It  is  necessary  that  he  should  be  placed  in  a state  of  indepen- 
dence so  that  he  may  never  be  suspected  of  carrying  out  the  be- 
hests of  dislike  or  prejudice;  he  must  be  thoroughly  conversant 
with  Canon  Law  and  the  rules  of  procedure.  A serious  defect  on 


his  part  is  likely  to  render  futile  and  useless  a protracted  investi- 
gation and  trial.  He  need  not  necessarily  be  the  one  to  first 
formulate  the  charges;  any  honorable  cleric  may  do  this  part  of 
the  work,  assisted  by  the  diocesan  secretary.  But  the  prosecutor 
is  responsible  for  the  thorough  preliminary  sifting  of  the  serious- 
ness of  the  charge,  of  the  character  of  the  witnesses,  of  the  testi- 
mony within  reach.  He  is  to  determine  whether  there  is  suffi- 
cient groundwork  for  the  establishment  of  the  legal  proof  that  is 
necessary  to  demonstrate  the  truth  or  to  show  its  moral  certainty 
sufficient  to  leave  no  reasonable  doubt  of  it.  If  after  his  pre- 
liminary investigation  he  cannot  see  his  way  to  this,  it  is  his  duty 
to  so  notify  the  judge,  that  merely  vexatious  proceedings  may  be 
stopped.  The  prosecutor  is  not  a servant  of  the  judge  but  of  law 
and  justice;  he  must  be  an  expert  in  law  and  in  the  power  of  sift- 
ing testimony  and  a good  impartial  judge  of  character. 


CHAPTEK  XV, 

The  Vicar-general  must  be  qualified  to  act  as  judge.  In  the  United  States  the 
bishop’s  qualifications  are  founded  on  better  presumptive  evidence.  Hence 
the  Instruction  for  the  United  States  differs  somewhat  from  the  summary 
procedure  for  Italy.  The  Roman,  civil  and  ecclesiastical,  forms  of  trial 
compared  with  the  modem  forms.  The  judge  bound  by  the  law  as  much 
as  the  accused. 

In  all  trials  of  clerics  under  the  new  method  of  procedure,  in 
Italy,  the  judge  is  the  vicar-general,  whose  tribunal  is  one  with 
that  of  the  bishop,  and  hence  there  is  no  appeal  from  the  sentence 
of  the  vicar-general  as  such  to  the  bishop,  but  only  to  the  Metro- 
politan. The  office  of  vicar-general  is  thus  seen  to  be  a veiy  im- 
portant one,  requiring  great  learning  and  mature  experience.  He 
must  be  faithful  and  fair  in  the  administration  of  justice;  and 
therefore  of  a temperate,  calm  and  judicial  mind.  No  one  who  is 
not  fit  both  by  thorough  knowledge  of  Canon  Law  and  by  great 
experience  in  judicial  questions  should  sit  as  an  Ecclesiastical 
Judge.  We  may  see  what  importance  is  attached  to  these  quali- 
fications from  the  limited  concession  made  to  the  Cardinal-Bishop 
of  Montefiascone  by  the  Congregation  of  Bishops  and  Begulars 
in  1843  (Anal.  Jur.  Pon.,  June  1884). 

In  Italy  the  vicar-general  must  have  the  degree  of  doctor  of 
both  Canon  and  Civil  Law  precisely,  because  the  complete  exer- 
cise of  Ecclesiastical  jurisdiction  requires  the  thorough  knowledge 
of  jurisprudence  and  of  the  rules  of  procedure.  The  Cardinal 
represented  that  he  was  unable  to  find  one  who  had  the  necessary 


68 


requisites,  and  asked  for  a dispensation.  The  Congregation  of 
Bishops  and  Regulars  would  only  tolerate  even  on  the  presump- 
tion of  the  truth  of  the  impossibility  of  finding  one  with  the 
proper  requisites,  the  use  of  the  services  of  an  ecclesiastic  without 
these  requisites  for  one  year,  considering  him  as  only  pro-vicar- 
general  and  insisting  that  he  should  call  to  his  aid  even  a layman 
who  was  thoroughly  versed  in  the  law;  and  meanwhile  the  Cardi- 
nal must  take  the  pains  to  find  one  who  has  all  the  necessary  quali- 
fications prescribed  by  law. 

The  practice  in  Italy  founded  on  clear  decisions  of  the  Con- 
gregation of  Bishops  and  Regulars  is  that  the  vicar-general  is 
always  brought  from  another  diocese,  in  order  that  his  integrity 
and  alienation  from  factious  and  partizan  feelings  of  any  kind 
may  be  beyond  suspicion  in  the  administration  of  the  law  and  of 
justice,  and  because  as  it  devolves  on  the  bishop  to  be  the  ordi- 
nary instigator  of  the  trial,  it  is  unseemly  for  the  instigator  of  the 
prosecution  to  be  the  judge. 

The  vicar-general  is  in  Italy  not  allowed  to  hold  the  office  of 
rector  of  a parish  lest  parochial  jealousies  influence  his  decisions. 
A near  relative  of  the  bishop,  such  as  brother  or  nephew,  is  also 
excluded  from  this  office. 

Circumstances  in  this  country  have  given  rise  to  the  neglect  of 
all  these  requisites  and  ^prescriptions.  Hence  while  in  the  Italian 
publication  mention  is  only  made  of  the  vicar-general  as  judge  in 
the  Ecclesiastical  criminal  procedure,  in  the  one  adapted  to 
American  circumstances  the  vicar-general  or  bishop  is  named. 
For  the  appointment  of  the  bishop  there  was  more  consultation 
required,  as  his  name  was  selected  ordinarily  at  least  as  one  of 
three  by  the  other  bishops  of  the  Ecclesiastical  province  and  sub- 
mitted to  the  Holy  See  with  the  statement  of  their  various  quali- 
fications, and  hence  there  is  a greater  presumption  that  he  is 
endowed  with  sufficient  knowledge  of  Church  Law,  and  fairness  in 
the  administration  of  justice. 

The  selection  of  the  vicar-general  is  left  entirely  to  the  appoint- 
ment of  the  bishop,  who  is  not  obliged  to  consult  anyone  in  making 
his  choice.  The  law  of  the  Church  puts  salutary  checks  upon  this 
discretion  of  the  bishop,  which  must  be  regulated  and  limited  at 
least  by  compliance  with  the  requirements  of  the  law  which  deter- 
mines the  important  requirements  of  the  office.  In  this  country 
where  the  formative  process  is  only  slowly  reaching  its' natural 
development,  these  checks  have  been  entirely  overlooked. 

Hence  the  Propaganda  probably  considering  the  more  probable 
possession  of  these  qualifications  by  the  bishops,  approved  the 


modification  which  suggests  in  the  method  of  procedure  imposed 
on  this  country  that  either  the  vicar-general  or  the  bishop  should 
act  as  the  judge  in  the  trials  of  clerics. 

The  whole  method  of  Ecclesiastical  procedure  is  founded  on  the 
old  Roman  system,  which  was  in  use  throughout  the  world  at  the 
birth  and  early  development  of  the  Church,  and  which  reached 
its  perfect  codification  under  Justinian.  ^ ^ 

Roman  judges  under  this  system  attained  a reputation  of  great 
judicial  fairness  in  their  administration  of  justice.  It  was  only 
when  the  crime  alleged  was  treason  against  the  State  that  the  hand 
of  the  judge  fell  heavily  and  rapidly  upon  the  accused.  The 
peculiarities  of  all  systems  founded  on  the  old  Roman  Imperial 
system  and  which  therefore  appears  in  the  Napoleonic  code, 
which  is  much  in  use  in  various  parts  of  the  European  Continent 
to-day,  is  that  the  judge  is  presumed  to  be  endowed  with  perfect 
knowledge  of  the  law,  the  absolute  art  of  questioning  and  cross- 
questioning witnesses,  the  unbiased  and  earnest  .desire  of  ascer- 
taining the  truth,  the  whole  truth  and  nothing  but  the  truth. 
He  is  supjiosed  to  have  a most  rigorous  resj^ect  for  the  law,  and 
to  have  the  greatest  permissible  tendency  to  leniency  toward  the 
accused.  He  undoubtedly  is  obliged  to  base  his  decision  upon  the 
acts,  upon  the  testimonies  therein  displayed,  and  the  proofs  there 
alleged.  But  as  so  much  depends  upon  his  knowledge  of  the  law, 
his  acumen  in  searching  for  the  truth,  his  judicial  impartiality,  our 
modern  ideas  of  the  imperfections  of  the  rulers  and  guides  of 
society  have  insisted  upon  enlarging  the  rights  of  the  accused  to 
be  confronted  with  the  witnesses  against  him,  and  of  to 

them,  directly  himself  or  through  his  counsel,  questions  that  may 
manifest  their  bias  and  show  their  unreliability.  The  Roman 
system  relies  much  more  upon  the  judge  than  the  modern  senti- 
ment which  gives  the  accused  what  he  must  naturally  deem  much 
more  trustworthy  aid,  the  right  of  his  own  advocate  to  question 
and  cross  question  as  often  as  any  new  testimony  is  to  be  dissected. 
The  civil  Roman  code  placed  more  restrictions  upon  the  number 
of  times  of  questioning  and  cross-questioning  than  the  Canon  Law 
which  was  imbued  with  more  of  the  paternal  tenderness  toward 
the  accused,  and  which  supposes  that  the  Ecclesiastical  Judge 
will  give  in  the  ordinary  procedure  the  cleric  more  opportunity  to 
bring  out  any  explanation  of  his  conduct,  and  to  repel  unjust 
insinuations.  The  judge  is  empowered  to  put  a stop  to  any  excess 
either  of  manner  or  of  quality  of  questioning,  especially  in  the 
summary  proceedings,  which  are  the  matter  of  this  treatise. 

The  Roman  system  seems  to  have  one  advantage  in  favor  of  the 


70 


accused  over  the  practice  in  our  common  law  courts.  In  these  the 
prosecuting  attorney  seems  to  have  the  right  to  be  the  last  to  sum 
up  against  the  accused.  The  Roman  procedure  in  civil  as  in  Canon 
Law  gives  this  to  the  counsel  for  the  accused.  But  the  reason  of 
this  apparently  is  that  so  much  rests  with  the  judge.  In  the  • 
Roman  system  the  accused  almost  as  soon  as  accused,  even  upon 
the  slightest  basis,  becomes  suspect  and  is  obliged  to  go  to  much 
more  pains  to  prove  his  innocence  than  our  modern  ideas  sanction. 
Yet  this  prescription  that  the  accused  shall  have  the  last  saj,  by 
himself  or  through  his  counsel,  before  the  whole  proceedings  are 
handed  into  the  judge  for  his  decision,  is  so  binding  that  its 
omission  would  make  the  judge’s  sentence  to  be  of  no  account.  The 
judge  has  no  right  in  formulating  his  decision  to  have  recourse 
to  preconceived  opinions  of  his  own  about  the  character  or  actions 
of  the  accused,  and  his  sentence  must  be  based  upon  the  accusa- 
tions made  by  the  official  prosecutor  and  upon  the  sufficiency  of 
l^roper  legal  evidence  brought  there  and  then  for  his  consideration. 
Sentence  pronounced  on  any  other  basis  is  clearly  recognized  as 
unjust.  The  sentence  is  to  either  acquit  or  condemn.  The  judge 
has  no  right  to  condemn  unless  the  evidence  adduced  is  legally 
sufficient  to  produce  moral  certainty  of  the  fact  of  the  delinquency 
alleged,  and  also  of  the  knowledge  that  it  was  a delinquency,  and 
hence  the  judge  is  expected  to  give  in  his  decision  in  a criminal 
trial,  the  grounds  on  which  he  bases  it. 

The  omission  of  any  of  the  substantial  prescriptions  of  the  form 
of  procedure,  and  whereas  in  this  summary  form  only  substantial 
requisites  have  been  laid  down,  the  omission  of  any  of  those  con- 
sidered in  this  treatise,  would  render  the  sentence  on  its  face  null 
and  void,  and  not  requiring  even  outward  obedience  or  acquies- 
cence. The  Judge  is  bound  by  the  law  as  much  as  the  accused, 
and  the  open  violation  of  the  law  by  the  Judge  emancipates  the 
accused  from  all  obligation  to  pay  any  attention  to  his  decision. 
Naturally  if  this  violation  of  the  law  on  the  part  of  the  Judge  is 
not  clearly  manifest,  the  presumption  is  in  favor  of  the  Judge  on 
account  of  the  doubt,  and  outward  acquiescence  is  to  be  given  to 
whatever  effects  are  legally  the  result  of  a valid  sentence,  which 
would  then  be  put  aside  by  the  appellate  tribunal  on  account  of 
the  unlawful  conduct  of  the  Judge  alone,  without  even  entering 
into  the  merits  of  the  case. 

Vast  learning,  great  judicial  impartiality,  love  of  justice  tempered 
by  mercy,  great  knowledge  of  human  character,  a thorough 
acquaintance  with  all  the  phases  of  clerical  life,  a true  sympathy 
for  the  needs  of  souls,  and  a dread  of  the  exaggerated  standards 


71 


of  human  holiness  raised  by  the  laity  for  clerics  are  a few  of  the 
many  qualifications  required  in  the  Ecclesiastical  Judge  who  is 
at  the  same  time  Shepherd  of  the  flock. 

How  difiicult  for  him  who  has  felt  himself  called  to  instigate 
the  prosecution,  not  to  base  his  final  decision  upon  a foregone 
conclusion  come  to  i^erhaps  even  before  the  first  citation ! Wliat 
care,  perhaps  at  times  excessive,  is  not  displayed  in  our  common 
law  trials  to  eliminate  from  the  jury  box,  a juror  who  had  formed 
some  vague  opinion  about  the  accused,  if  there  is  any  suspicion 
that  this  preconceived  notion  might  prevent  him  from  thoroughly 
weighing  the  evidence  to  be  brought  before  him  in  the  course  of 
the  trial ! Hence  the  wise  practice  in  Italy  of  keeping  the  bishop 
aloof  from  the  judicial  bench,  and  of  appointing  as  his  substitute 
one  who  has  devoted  his  life  to  the  study  of  the  law  and  the  way 
of  its  administration.  The  fact  of  this  substitute  being  clearly  one 
who  comes  in  with  each  new  bishop,  and  ceases  to  exercise  the 
office  absolutely  and  finally  at  the  bishop’s  removal  or  death, 
makes  him  alien  to  all  the  partisan  entanglements  which  are  likely 
to  arise  in  every  community,  and  which  often  create  a bias,  perhaps 
a jealousy,  against  one  whose  talents  are  of  a higher  order,  and 
whose  very  aggressiveness  is  a good  cause  to  make  him  irksome. 

But  the  formative  period  of  this  missionary  country  has  thrown 
upon  the  bishop  himself  and  almost  alone  the  responsibility  of 
concentrated  power  which  in  thoroughly  organized  dioceses  is 
partitioned  among  many  and  subjected  to  checks  which  the  long 
experience  of  the  Church  in  dealing  with  the  difficult  problems  of 
human  life  found  necessary  to  procure  and  preserve  rational  obe- 
dience. By  degrees  these  important  restrictions  are  being  extended 
in  accord  with  the  wish  of  the  Supreme  Authority  in  the  Church. 


CHAPTER  XVI. 

Penalties  inflicted  on  clerics.  Clerical  prisons.  Suspension,  Excommunication, 
Interdict.  A censure  pronounced  after  a legitimate  appeal,  or  founded 
upon  an  intolerable  mistake  need  not  be  heeded. 

The  penalties  inflicted  upon  clerics  in  this  country  have  not 
partaken  of  the  directly  temporal  character  that  have  often  been 
used  in  Catholic  countries  in  times  gone  by,  and  are  still  in  us6 
in  a few  of  them.  There  the  Ecclesiastical  Courts  have  been 
equipped  with  all  the  accessories  of  any  civil  court.  In  all  things 
of  a strictly  ecclesiastical  character,  and  in  many  of  a mixed  char- 
acter, all  were  subject  to  the  Ecclesiastical  Courts.  Crimes  such 


72 


as  blasphemy,  heresy,  sacrilege  and  adultery  on  the  part  of  the 
laity  subjected  them  directly  to  the  Ecclesiastical  Court.  All  tem- 
poral matters  of  the  clergy,  or  even  where  one  of  the  parties  was 
a cleric,  were  adjudicated  by  the  Ecclesiastical  Judge.  The  cleric 
had  the  privilege  of  being  tried  in  his  own  court  for  whatsoever 
crime  he  might  have  committed.  The  Diocesan  Court  had  there- 
fore a prison  attached  to  it,  and  had  officers  for  the  purpose  of 
arresting  delinquents  and  of  obliging  witnesses  to  appear  on  the 
side  of  the  prosecution,  as  also  in  favor  of  the  accused.  Often- 
times the  delinquents  were  punished  by  fines,  or  imprisonment^ 
or  confined  for  life  to  a monastery.  Clerics  were  frequently  sub- 
jected to  a loss  of  their  pecuniary  emoluments,  or  to  a privation  of 
a share  of  the  revenues  of  their  benefices.  For  some  heinous 
crimes  they  were  condemned  to  hard  labor  in  the  ecclesiastical 
prison,  and  at  other  times,  after  undergoing  their  term  there, 
they  were  restricted  in  their  liberty  or  ordered  not  to  go  beyond 
certain  limits  of  a towm  or  countiy,  or  even  sent  into  exile.  When 
they  were  adjudged  worthy  of  death  the  Ecclesiastical  Court 
ordered  them  to  be  subjected  to  a ceremom^  indicating  a degra- 
dation from  their  clerical  state,  that  then  they  might  be  handed 
over  to  the  secular  authority,  which  should  carry  out  the  law  of 
the  State.  Hence  the  saying  that  the  Church  “has  a horror  for 
blood,”  never  wishing  directly  to  have  part  in  the  taking  away  of 
life,  even  for  the  most  heinous  offences.  It  left  the  execution  of 
this  to  the  civil  power.  Several  of  the  above  j)enalties  were  ex- 
pected to  be  inflicted  before  there  was  any  mention  made  of  the 
spiritual  penalties  which  are  called  censures.  How  far  an  appli- 
cation of  some  of  the  milder  sort  might  be  practical  or  desirable 
in  this  country  is  hard  to  say  before  an  attempt  is  made  to  deprive 
of  spiritual  helps  those  who  at  times  most  need  them.  There  is  a 
great  evil  certainly  attendant  upon  a too  easy  recourse  to  the 
serious  spiritual  penalties,  and  hence  we  find  the  Popes  very  ener- 
getically protesting  against  their  easy  and  excessive  use.  The 
spiritual  punishments  called  censures  are  suspension,  and  ex- 
communication,  and  interdict.  The  first  is  entirely  for  clerics,, 
the  other  two  are  used  against  the  laity  and  clerics  alike. 

A censure  is  described  ordinarily  in  Canon  Law  as  a spiritual 
and  medicinal  penalty  whereby  the  public  ecclesiastical  authority 
deprives  the  delinquent  and  contumacious  members  of  the  Church 
of  the  use  of  certain  spiritual  things  to  correct  them,  and  to  make 
them  desist  from  contumacy.  A censure  can  only  be  imposed  by 
the  public  ecclesiastical  authority,  which  has  the  public  exercise 
of  public  jurisdiction  called  contentious,  because  connected  with 


73 


trials.  The  Pope  has  this  power  primarily  throughout  the  Church. 
Bishops  have  it  for  their  dioceses,  and  as  their  vicar-generals 
have  from  their  of&ce  the  same  ordinary  power,  they  also  have 
this  right.  Parish  priests  have  no  such  right,  and  they  are 
strictly  prohibited  from  threatening  censures  against  any  one,  as 
their  ordinary  jurisdiction  relates  to  the  conscience  and  the  tribu- 
nal of  confession.  Yet  this  power  must  be  exercised  in  accordance 
with  the  prescriptions  laid  down  by  law,  and  the  Ecclesiastical 
Judges  are  required  to  be  very  moderate  in  their  use.  We  can 
form  an  opinion  of  the  moderation  required  in  this  matter  from 
the  penalties  to  which  Pope  Innocent  IV  subjected  Ecclesiastical 
Judges  who  should  impose  censures,  having  omitted  not  only  the 
substantial  forms  of  law  but  even  the  minor  details,  which  he  ex- 
pressly mentions,  of  putting  in  writing  the  sentence,  of  express- 
ing the  motive  of  the  censure,  of  giving  a copy  when  asked  for  to 
the  delinquent  within  a month,  and  of  omitting  its  authentica- 
tion by  the  Court’s  seal.  He  decrees:  ‘Hf  any  Judge  should  rashly 
transgress  this  constitution  let  him  know  that  he  is  suspended 
for  a month  from  entrance  to  the  church  and  from  the  divine 
offices.  The  Superior  to  whom  recourse  is  had  will  without  diffi- 
culty relax  the  sentence  and  condemn  the  Judge  to  indemnify 
the  excommunicated  one  for  all  expenses,  and  will  punish  him  in 
other  severe  manner  that  this  penalty  may  teach  Judges  what  a 
serious  thing  it  is  to  fulminate  sentences  of  excommunication 
without  mature  reflection.  And  we  wish  that  the  same  line  be 
followed  with  regard  to  sentences  of  suspension  and  interdict.” 
(Cap.  I de  Sent.  Exc.  in  VI.)  Whilst  it  is  ordinarily  required  ta 
give  outward  acquiescence  to  an  unjust  sentence  of  suspension, 
interdict  or  excommunication,  yet  it  does  not  really  in  any  sense 
bind  the  conscience,  even  if  the  injustice  comes  merely  from  the 
want  of  due  observance  of  the  forms  of  trial  required  by  the  law, 
though  the  delinquency  may  have  occurred.  No  respect,  even 
outward,  at  all  need  be  given  it  if  notoriously  there  was  no  delin- 
quency on  the  part  of  the  one  condemned.  The  learned  D’Avino, 
in  his  Ecclesiastical  Encyclopedia,  at  the  word  “ Excommunica- 
tion” gives  this  principle  in  unmistakable  language. 

“If  a censure  is  evidently  null,  such  as  one  pronounced  after  a 
legitimate  appeal  or  which  was  founded  upon  an  intolerable  mistake 
it  has  no  effect  before  God  or  man.  And  consequently  there  is  na 
need  of  absolution  from  it,  and  as  its  nullity  is  thoroughly  notor- 
ious, there  is  not  any  obligation  to  pay  heed  to  it,  even  outwardly.” 

Some  censures  are  attached  to  the  violation  of  the  law,  and  are 
said  to  be  incurred  by  the  very  fact  of  the  violation  of  the  law.. 


74 


No  one  however  incurs  such  censure  if  he  was  not  aware  that  his 
action  was  condemned  under  censure.  Other  censures  are  threat- 
ened as  consequent  upon  the  disobedience  to  a Superior’s 
command  in  matters  to  which  his  authority  extends.  These  latter 
censures  cease  with  the  life  or  authority  of  the  Superior  who  gave 
the  mandate.  Unless  it  is  very  clearly  laid  down  that  a censure  is 
incurred  by  the  very  act  of  the  violation  of  the  law  the  presumption 
is  that  it  is  attached  to  the  sentence  of  the  Judge  who  is  to 
pronounce  it  after  a judicial  examination  of  the  delinquency 
alleged.  Even  where  the  censure  is  threatened  as  consequent 
upon  the  act  of  disobedience  to  a Superior’s  command,  a special 
proclamation  by  this  Superior  of  the  actual  application  of  the 
penalty  is  needed,  before  the  censure  can  affect  the  relations  of 
others  with  the  one  so  threatened. 

Suspension  is  a penalty  entirely  confined  to  clerics,  and  deprives 
them  either  partially  or  totally  of  the  exercise  of  the  functions  of 
the  special  grade  or  order  from  which  they  are  suspended. 
In  all  penalties,  the  most  lenient  interpretation  compatible 
with  the  wording  of  the  sentence  may  be  lawfully  followed. 
It  is  understood  that  if  a bishop  were  suspended,  he  could  still 
exercise  merely  priestly  functions ; a suspended  priest  might  act  as 
deacon.  Sometimes  a priest  is  suspended  from  his  jurisdiction 
only,  when  he  is  debarred  from  hearing  confessions,  and  yet  may 
say  Mass. 

This  distinction  is  all  important ; oftentimes  when  there  maybe 
good  reason  to  shut  off  one  from  the  exercise  of  jurisdiction  for 
the  welfare  of  the  flock,  it  is  a very  detrimental  thing  to  the 
chastised  individual  to  be  deprived  of  the  best  means  to  restore 
his  spirit  of  love  of  God  and  bring  him  back  to  his  first  fervor, 
viz  : the  participation  of  the  Holy  Eucharist.  As  the  one  suspended 
not  merely  from  his  jurisdiction  but  from  the  exercises  of  his 
Order,  cannot  offer  the  Holy  Sacrifice  even  in  a remote  district  to 
w’hich  he  may  have  retired  to  hide  his  disgrace,  he  is  very  often 
debarred  from  the  reception  of  the  Holy  Eucharist,  because  he 
knows  that  his  reception  of  it  would  only  call  attention  to  what 
he  is  intent  upon  concealing. 

Additional  precaution  is  needed  where  the  privation  of  all  exer- 
cise of  Ecclesiastical  functions  is  a practical  condemnation  to 
beggary,  or  death  by  starvation.  I have  seen  it  stated  in  a scientific 
treatise  that  formerly  in  Denmark  many  prisoners  were  condemned 
not  for  the  most  heinous  offences  either,  to  live  on  bread  and 
water  for  thirty  days,  and  that  it  was  practically  found  equivalent 
to  condemnation  to  death. 


75 


Parallel  cases  have  at  times  been  brought  on  by  a too  readj' 
abuse  of  Ecclesiastical  suspension.  The  law  frowns  upon  a suspen- 
sion that  is  declared  to  be  perpetual.  As  a rule,  except  in  some  very 
extreme  cases  of  delinquency,  the  attempt  to  make  it  perpetual, 
or  without  fixing  the  time  of  its  duration,  is  sufficient  for  its 
reversal  and  nullification  in  a higher  court.  The  suspension  ‘ dur- 
ing the  good  pleasure  of  the  judge,’  isaform  very  much  suspected 
and  at  least  the  highest  court  will  see  to  it  that  a definite  explan- 
ation and  limitation  be  assigned  to  such  vague  words,  unless  it  be 
very  clear  that  they  are  guided  by  a really  loving  interest  in  the 
vrelfare  of  the  one  so  treated. 

The  penalty  of  excommunication  is  the  one  most  frequently 
heard  of  and  naturally  considered  as  the  severest  of  all  those 
imposed  by  the  Church,  as  its  object  is  to  cut  off  a member  of  the 
Church  from  its  Communion,  and  therefore  from  the  reception  of 
the  Sacraments,  or  from  the  participation  in  all  things  that  are 
derived  from  being  a member  of  the  body  of  the  Church.  The 
distinction  of  major  and  minor  excommunication  has  disappeared 
since  1869,  when  Pius  IX.  practically  abolished  the  minor  excom- 
munication. This  minor  excommunication,  before  the  15th  century 
deprived  of  the  reception  of  the  Sacraments  all  who  held 
religious,  or  without  good  reason,  civil  intercourse  with  those  who 
had  incurred  the  major  excommunication. 

Pope  Martin  V.,  at  the  Council  of  Constance,  had  restricted 
this  censure  to  those  who  held  this  intercourse  with  those  who 
were  excommunicated  by  name.  Grandclaude  (Lib.  v.  Deer.  Sect, 
ii.  De  Excom.  pag.  586),  says  : “The  minor  excommunication  was 
not  incurred  except  for  intercourse,  without  sufficient  reason  with 
those  who  were  to  be  avoided,  (Vitandi.)  To-day,  after  the  Con- 
stitution “Apostolicse  Sedis”  it  has  entirely  ceased,  as  no  mention 
is  made  of  it,  though  the  Pontiff  (Pius  IX.)  expressly  undertook 
to  enumerate  all  the  censures  established  by  law.”  And  Zitelli 
(De  cens..  Art.  II;  De  Excom.  page  475)  says:  “Minor  excom- 
munication, as  established  in  law,  was  incurred  for  one  reason 
alone,  viz  ; the  culpable  intercourse  with  one  excommunicated  to 
be  avoided,  (Vitandus.)  This  was  abolished  by  the  Constitution 
Apostolicse  Sedis.’  So  declared  the  Sacred  Congregation  of  the 
Inquisition  on  Wednesda}^,  December  5th,  1883,  with  the  approval 
of  Leo  XIII.” 

Hence  no  censure  is  incurred  to-day  by  holding  civil  intercourse 
with  anyone  however  excommunicated,  even  if  it  be  by  name. 

An  interdict  may  even  affect  the  innocent.  It  is  a censure  whose 
object  is  to  deprive  the  persons  interdicted  of  the  use  of  certain 


76 


Sacraments,  of  the  divine  office,  and  of  Christian  burial;  “in  as 
much  as  they  are  a participation  in  sacred  things.”  These  last 
words  indicate  how  it  differs  from  an  excommunication  which 
deprives  of  Communion  with  the  Church,  and  from  a suspension 
which  deprives  of  the  exercise  of  Ecclesiastical  power. 

A Church  may  be  interdicted  so  that  no  public  divine  service 
may  be  offered  there.  A person,  clerical  or  lay,  interdicted,  is 
debarred  from  taking  part  in  these  public  services.  Sometimes  a 
whole  city  or  even  a whole  country"  has  been  placed  under  inter- 
dict on  account  of  the  deeds  of  the  public  ruling  authorities,  civil 
or  Ecclesiastical. 


CHAPTER  XYH. 


Appeal  not  necessary  even  from  an  injustice.  The  people  have  an  acknowledged 
right  to  complain  of  excessive  burdens  or  other  grievances.  Eestrictions 
gradually  placed  on  bishops’  authority.  Appeal  first  to  the  Metropolitan 
and  then  to  Propaganda  the  ordinary  waj".  Appeal  prevents  execution  of 
sentence  of  removal.  Yet  American  bishops  obtain  a serious  innovation 
upon  this  rule  of  Canon  Law.  Church  property  safeguarded  by  the  civil 
courts. 

No  one,  howsoever  aggrieved,  is  obliged  to  appeal  for  redress, 
from  any  grievance  to  which  he  is  subjected.  If  deserved,  Chris- 
tian resignation  [may  prompt  him  to  undergo  the  trouble  pati- 
ently and  submissively,  accejiting  at  once  the  chastisement.  If 
undeserved,  suiDernatural  meekness  may  enable  him  to  exercise 
his  patience,  and  he  thereby  acquires  great  merit  in  the  sight  of 
God.  Sometimes  one’s  natural  disposition  shrinks  from  the  tech- 
nical labor  that  may  be  required  in  a search  for  redress.  At  other 
times  the  impediments  in  the  way  are  too  great,  the  delays  and 
worries  are  as  wearing  and  troublesome  as  the  punishment  in- 
llicted.  x4.gain,  a [philosophical  turn  [of  mind  may  attach  little 
importance  to  the  ills  of  life. 

Grievances  are  inflicted  on  clerics  judicially  or  extra-judicially- 
Those  inflicted  judicially  are  connected  with  the  sentence  of  an 
Ecclesiastical  Court,  whenever  the  punishment  is  not  deserved,^ 
because  it  is  in  conflict  with  the  evidence,  wffiich  was  either 
insufficient  or  too  unreliable  to  warrant  an  unfavorable  decision  or 
because  the  punishment  imposed  is  excessive  and  not  propor- 
tioned to  the  delinquency  proven,  or  because  conducive  to  the 
ruin  rather  than  the  amendment  of  the  delinquent.  Extra-judicial 
grievances  are  those  inflicted  by  superiors  through  arbitrary  and 
oppressive  dealings  with  those  under  them.  Thus  a pastor  may 
impose  unbearable  burdens  upon  his  assistants;  a bishop,  or  con- 


seqiientlv  his  vicar-general,  may  lay  too  heavy  a hand,  and  x)lace 
too  excessive  a restriction  upon  pastors  or  upon  those  sent  to  aid 
them.  Any  of  them  may  impose  excessive  pecuniar}^  or  spiritual 
burdens  upon  the  people. 

A wise  principle  prevents  the  higher  authority  from  paying- 
attention  to  or  from  encouraging  unfounded  and  petty  complaints 
coming  easily  from  persons  of  quarelsome  temper. 

Respectful  remonstrance  to  the  parties  supposed  to  be  oppres- 
sive should  almost  invariabh'  precede  the  recourse  to  the  higher 
authority. 

From  the  pastor’s  action  there  has  easily  been  recognized  the 
right  to  seek  the  intervention  of  the  bishop  if  the  assistant’s  per- 
sonal liberty  is  improperly  restrained,  or  even  if  altogether  too 
heavy  a share  of  the  pastoral  labor  is  thrown  upon  his  shoulders 
by  him  who  has  the  chief  responsibility.  The  people,  too,  who 
are  seriously  aggrieved  or  overburdened  have  an  undoubted 
right  to  present  in  a proper  manner  their  remonstrance  against  a 
grievance  inflicted.  This  is  especially  true  if  there  is  serious 
neglect  in  the  administration  of  the  Sacraments,  when  the  first 
complaint  should  be  made  to  the  pastor  who  is  most  likely  to  pro- 
cure its  amendment,  whether  the  neglect  was  from  his  fault  or 
from  that  of  others.  In  such  an  important  matter  connected  with 
the  welfare  of  souls,  if  the  neglect  should  continue  the  bishop 
would  heed  not  anonymous  communications  but  well  considered 
statements  authenticated  by  truthful  and  known  witnesses.  The 
same  should  be  said  in  the  case  of  serious  scandals,  and  also  if 
excessive  pecuniary  burdens  are  unnecessarily  piled  upon  the 
people’s  shoulders. 

Remonstrances  or  complaints  against  a bishop’s  actions  are  un- 
fortunately at  times  found  to  be  necessary,  and  the  care  and  res- 
jject  shown  in  their  presentation  must  be  proportionably  increased 
in  view  of  the  much  greater  authority  which  belongs  to  them  in 
their  diocese,  A bishop  is  truly  set  to  govern  the  portion  of 
the  flock  of  Jesus  Christ  assigned  to  him  in  his  diocese,  and 
special  graces  are  undoubtedly  annexed  to  his  appointment  by  the 
Chief  Shepherd  as  well  as  to  the  Episcopal  character  received  in 
Holy  Orders.  However  his  authority  is  not  by  any  means  of  an 
unlimited  character;  it  is  hedged  in  by  the  natural  law  of  equity 
and  justice,  by  the  divine  positive  law  and  by  the  Canon  Law  of 
the  Church.  The  last  or  Church  Canon  Law,  because  of  its  mainly 
human  origin  is  subject  to  variations,  modifications  and  even 
complete  recall  in  many  respects,  according  to  the  various  cir- 
cumstances of  time  and  place. 


78 


In  this  missionary  country  for  a long  time  priests  had,  and 
even  to-day  to  a certain  extent  have,  in  certain  things,  more  power 
than  bishops  in  settled  Catholic  countries.  One  proof  that  comes 
to  mind  at  once  is  the  power  which  almost  any  priest  in  this 
country  as  soon  almost  as  he  is  ordained  receives  to  absolve  from 
the  many  excommunications,  with  four  exceptions,  which  are  laid 
down  in  law  as  reserved,  and  even  specially  reserved  to  tha  Pope 
himself.  In  Catholic  countries  generally  few'  bishops  are  so 
privileged. 

The  bishops  have  enjoyed  a proportionately  still  more  extensive 
authority.  There  is  hardly  a law  of  the  Church  in  which  they 
are  not  empow^ered  to  dispense  in  individual  cases,  and  sometimes 
for  their  wdiole  dioceses.  They  receive  delegated  authority  to 
dispense  in  almost  all  the  impediments  which  by  the  law  of  the 
Universal  Church  annul  marriage. 

An  amusing  anecdote  told  of  the  late  Pius  IX  illustrates  in  an 
exaggerated  form  the  extent  of  the  authority  granted  to  or  exer- 
cised by  them.  Some  very  influential  persons  were  soliciting  some 
exceedingly  special  favor  for  a marriage  case,  which  apparently 
trenched  upon  a divine  prohibition.  Of  course  even  the  Pope 
cannot  dispense  a divine  law,  except  where  it  is  clearly  recognized 
that  God  left  him  the  dispensing  power.  So  the  Hol}^  Father  gave 
as  his  repl}'  that  the  favor  w'as  not  wuthin  his  power;  and  hence 
there  was  no  remedy. 

His  petitioners  had  doleful  looks,  and  to  relieve  the  sadness  he 
turned  quizzically  to  them ; “ It  is  true  that  I,  the  Pope,  have  not 
the  power,  but  perhaps  if  you  applied  to  some  of  the  American 
bishops  they  might  be  willing  to  grant  the  favor.” 

In  the  formative  process  of  missionary  countries  it  has  been 
found  expedient,  perhaps  even  necessary,  to  place  as  few  limita- 
tions as  possible  to  the  authority  of  vicars  apostolic  and  of  bishops. 
This  formative  period  has  lasted  well  nigh  a century,  and  gradually 
of  late  there  has  been  an  attempt  to  seriously  curtail  their  almost 
unlimited  pow’er.  TVTien  men  have  for  a long  period  had  almost 
unrestricted  sway,  it  is  not  surprising  that  its  curtailment  in  accord 
even  with  the  common  law  of  the  Universal  Church  should  make 
upon  them  the  impression  of  being  an  innovation  much  to  be 
regretted. 

At  times  they  almost  have  a lurking,  perhaps  an  outspoken  and 
expressed  feeling  that  the  divine  right  to  rule  their  portion  of  the 
flock  is  being  interfered  with  by  the  new  restrictions.  Yet  the 
chief  shepherd  of  the  flock  and  his  immediate  counsellors,  taught 
by  conflicts  with  the  world  for  centuries,  too  often  And  it  necessary 


79 


to  use  their  authority  to  undo  the  work  of  imprudence,  which  is 
most  likely  to  spring  from  the  use  of  concentrated  almost  unlim- 
ited power. 

The  only  authority  to  whom  practically  extrajudicial  complaint 
against  a bishop  for  any  excess  could  be  made  in  this  country  was 
the  Sacred  Congregation  of  the  Propaganda  in  Rome. 

The  Council  of  Trent  had  curtailed  the  authority  of  the  Metro- 
politans so  that  only  the  minor  complaints  against  a bishop  could 
be  entertained  by  the  Metropolitan,  while  the  more  grievous 
were  to  be  submitted  to  the  bishops  of  the  province  assembled  in 
council.  As  hardly  any  provincial  councils  were  held  in  many 
Catholic  countries  for  well  nigh  three  centuries  after  the  Council 
of  Trent,  its  legislation  in  this  respect  fell  into  complete  desuetude 
and  complaints  in  serious  matters  against  bishops  had  to  be  made 
directly  to  the  Roman  authorities. 

In  this  country,  both  in  extrajudicial  and  judicial  complaints,  the 
Metropolitans  were  very  loath  to  entertain  appeals  against  bishops, 
whether  made  by  the  people  or  by  clerics.  So  many  cases  of 
complaint  were  in  consequence  lodged  against  them  in  Rome  that 
the  Propaganda  insisted  upon  reviving  and  strengthening  the 
authority  of  Metropolitans  at  least  in  the  judicial  complaints  of 
clerics  against  the  judicial  sentences  of  bishops.  Hence  it  is  now 
laid  down  positively  in  the  new  procedure  for  trials  of  clerics,  that 
where  they  have  good  reason  to  find  fault  either  with  the  punish- 
ment or  the  excessive  amount  of  punishment,  the  appeal  is  to  be 
taken  from  the  Bishops’  Court  to  that  of  the  Metropolitan  Court; 
and  if  the  case  in  first  instance  was  one  tried  in  the  Metropolitan 
Court,  the  appeal  is  taken  to  the  Metropolitan  Court  of  a neigh- 
boring Ecclesiastical  province. 

The  proposition  made  in  the  Provincial  Council  of  St.  Louis  in 
1855,  afterward  incorporated  into  the  Second  Plenary  Council  of 
Baltimore,  was  that  the  appeal  from  the  Metropolitan  Court  was 
to  be  taken  to  that  of  the  senior  bishop  in  the  same  province.  But 
it  has  now  been  arranged  that  this  appeal  shall  always  be  taken 
to  another  Metropolitan  Court. 

The  higher  court  is  expected  to  examine  the  grounds  of  appeal 
and  if  it  finds  them  sufficient,  to  follow  the  form  of  procedure  laid 
down  for  the  court  of  first  instance  for  a retrial.  No  encourage- 
ment will  be  given  to  skipping  over  the  Metropolitan  Court,  yet 
the  Propaganda  asserts  always  its  right,  as  direct  representative 
of  the  Holy  See,  to  take  first  cognizance  of  any  case  that  may  be 
brought  to  it,  and  much  more  therefore  it  may  use  its  right  to  be 


80 


the  first  reviewer  of  the  acts  of  the  Episcopal  Court,  in  which  a 
case  was  tried  in  the  first  instance. 

The  appeal  gives  the  right  to  the  appellate  Court  to  adjudicate 
the  whole  matter  on  which  appeal  is  taken,  but  it  does  not  neces- 
sarily suspend  the  effect  of  the  first  sentence,  and  in  fact  does  not 
where  the  Ecclesiastical  censures  of  suspension,  excommunication 
or  interdict  have  been  fulminated.  Hence  one  juridically  even 
though  unjustly  excommunicated,  suspended  or  interdicted  by 
sentence  of  a court  is  expected  to  outwardly  respect  the  censure, 
till  the  higher  court  reverses  it.  This  is  so  only  where  one  has 
been  properly  cited  before  a court  to  answer  for  his  conduct.  If 
any  punishment  is  decreed  without  the  process  of  law,  there  is  no 
need  of  heeding  it  in  conscience,  or  even  outwardly,  even  though 
the  delinquency  existed.  ' 

Ordinarily  an  appeal  from  a sentence  of  the  court  ordering  the 
removal  from  a benefice  or  an  office  stops  the  removal  till  the 
higher  courts,  to  which  appeal  is  made,  have  examined  the  case 
and  given  their  decision. 

A special  privilege  changing  this  effect  was  introduced  by  the 
Third  Plenary  Council  of  Baltimore,  with  the  consent  of  the  Holy 
See,  though  most  probably  granted  with  great  reluctance  because 
in  opposition  to  what  was  considered  a fundamental  principle  in 
Ecclesiastical  law  that  the  possession  of  a benefice  should  not  be 
taken  away  till  not  only  a trial  was  given  in  the  first  court,  but 
also  ample  opportunities  were  given  for  a hearing,  often  likely 
to  be  more  impartial  in  the  Appellate  Courts. 

The  286th  decree  assigns  the  reason  of  this,  and  as  it  is  an 
accepted  law  it  is  important  to  realize  its  bearings:  “As  in  many 
of  our  provinces  the  rectors  of  churches  are  by  law  appointed  as 
ex-officio  trustees  of  the  churches,  caution  is  to  be  used  lest  when  it 
is  found  necessary  to  deprive  a rector  of  his  office,  he  should  by 
appeal  from  the  sentence  stop  its  execution,  and  thereby  keep  be- 
fore the  civil  authority  his  position  of  trustee.  We  decree,  with 
the  consent  of  the  Holy  See,  that  no  rector,  even  an  irremovable 
one,  who  has  been  juridically  (by  process  of  law)  removed,  or  de- 
posed from  or  deprived  of  his  office,  shall  be  able  to  appeal  against 
the  Ordinary’s  sentence  in  suspensivo  (to  suspend  its  execution),  but 
only  in  devolutivo  (the  appeal  to  take  effect  only  after  sentence  by 
the  higher  court),  so  that  he  shall  cease  to  be  a trustee  of  the 
Church,  either  forever  or  until  such  time  as  the  Appellate  Judge 
giving  a final  decision  shall  reinstate  him.  Therefore  until  the 
matter  is  finally  settled  another  rector  or  an  administrator  with 
proper  powers  shall  be  appointed  and  the  bishop  shall  mecinwhile 


81 


provide  for  the  proper  maintenance  of  the  removed  rector  and 
the  administrator.” 

Very  serious  representations  must  have  been  made  to  the  Holy 
See  to  introduce  this  innovation.  It  is  very  hard  for  a pastor  who 
has  been  suspended  from  his  office  and  may  remain  so  during 
months  and  years  of  delay's,  that  are  not  of  his  seeking,  to  have  to 
depend  upon  the  discretion  of  the  judge  who  condemned  him  for 
the  allowance  to  be  made  him  for  his  maintenance.  Some  definite 
arrangement  by  law  would  be  most  proper.  Great  precaution 
w’ill  be  needed  to  avoid  new  and  perhaj^s  greater  comj^lications 
before  the  civil  law,  of  which  the  germs  may  easily  be  seen  in  the, 
if  not  guarded,  illegal  actions  of  this  temporary  administrator 
for  the  purchase  or  sale  of  church  property,  or  for  making  con- 
tracts. The  administrator  has  no  legal  standing  at  all,  whether  it 
is  a bishop  or  rector  who  receives  a coadjutor  with  Ecclesiastical 
power  of  administration.  The  state  authorities  have  been  very  gen- 
erous in  their  guardianship  of  Catholic  Church  property,  and  have 
granted  them  all  they  asked  for  its  legal  protection.  The  Bishop, 
Vicar-General  and  pastor  have  in  their  hands  each  year  the  selec- 
tion of  the  two  lay  trustees.  Any  two  of  the  clerics  if  suspicious 
of  the  third  could  without  much  difficulty  deprive  him  of  all 
active  control  by  their  choosing  the  lay  trustees,  and  apportioning 
the  offices.  Fortunately  this  trustee  system  is  very  useful  to  pre- 
vent any  one  member,  or  for  that  matter,  any  majority  of  them 
from  doing  any  serious  harm  to  the  property  held  in  trust  for  the 
congregation.  Any  member  of  the  board  if  he  had  reason  to  fear 
such  a serious  evil,  could  easily  apply  to  the  Supreme  Court, 
which  would  give  ample  time  for  the  thorough  sifting  and  exami- 
nation of  the  action  to  which  such  a wrong  might  be  annexed. 
The  Courts,  with  great  reason  are  very  jealous  of  all  tampering 
with  trust  estates.  As  each  year  the  two  lay  trustees  are  to  be 
newly  elected,  there  is  no  great  difficulty  in  gaining  time  to 
thwart  any  collusion,  if  any  should  occur,  on  their  part  with  any 
one  of  the  clerical  trustees  to  the  detriment  of  the  trust.  No 
Church  property  can  legally  be  sold  or  mortgaged  without  action 
being  taken  at  a meeting  of  the  board  properly  convoked  with 
notice  to  all  the  trustees,  and  certainly  no  sale  can  be  effected 
without  the  permission  of  the  Supreme  Court. 


82 


CHAPTEK  XYIII. 

Consultors  proposed  to  take  part  in  the  administration  of  dioceses,  and  to 
designate  candidates  for  bishoprics,  also  to  act  as  judges  of  causes  of 
clerics.  The  Propaganda  in  1883  recommends  the  establishment  of  chap- 
ters. The  American  hierarchy  objects.  The  Propaganda  yields  ; and  the 
American  Council  proposes  still  further  modifications,  which  are  accepted. 
Tl)e  true  method  of  appointing  consultors  as  determined  by  the  Council 
often  neglected. 

The  first  formal  legislative  attempt  to  give  some  of  the  diocesan 
clergy  in  the  United  States  an  authoritative  share  in  the  admin- 
istration of  the  diocese  is  found  in  the  First  Plenary  Council  of 
Baltimore  in  1852,  and  takes  the  form  of  a recommendation,  rather 
than  of  a command.  The  sixth  decree  of  this  Council  sa^^s  : “The 
Fathers  have  thought  it  proper  to  .exhort  the  bishops,  to  select 
wherever  it  can  be  done,  some  priests  in  their  dioceses  of  mature 
age,  and  of  recognized  learning,  good  conduct  and  administrative 
ability,  to  be  appointed  as  consultors,  whose  opinions  they  wull 
seek  in  the  administration  of  the  diocese,  wherever  needful.  They 
have  thought  worthy  of  commendation  the  custom  which  has  pre- 
vailed somewhere,  of  calling  the  consultors  together  once  at  least 
a month  on  a fixed  day,  to  discuss  the  affairs  of  the  diocese.”  * 

The  Propaganda  in  its  letter  of  February  17,  1857,  when  giving 
its  recommendation  to  amend  certain  decrees  of  the  First  Provin- 
cial Council  of  St.  Louis  of  1855,  wrote  to  the  Archbishop  of  St. 
Louis  with  instructions  to  make  known  its  wish  to  the  other 
Metropolitans  of  the  United  States,  that  the  services  of  these 
consultors,  whose  appointment  had  been  recommended  by  the 
Plenary  Council  of  Baltimore,  should  be  utilized,  among  other 
serious  affairs  of  the  diocese,  in  the  examination  and  trial  of  priests 
who  may  have  been  charged  with  any  delinquency. 

The  Eighth  Provincial  Council  of  Baltimore,  or  the  first  held 
there  after  the  above  decree  of  tho  First  Plenary  Council,  took 
prompt  action  in  conformity  with  the  spirit  of  the  legislation  there 
recommended.  It  will  be  well  to  produce  the  6th  decree  of  this 
Eighth  Baltimore  Provincial  Council  : “ As  by  the  6th  decree  of 

the  Plenary  Council  of  Baltimore,  bishops  are  admonished  to  select 
some  among  the  more  worthy  of  the  priests  of  their  dioceses,  who 
will  be  his  consultors  in  the  administration  of  the  diocese,  we  now 
add  an  exhortation  that  they  enlarge  the  number  to  ten  or  twelve 
though  they  may  not  be  bound  to  hear  the  opinions  of  all  even 
in  the  more  serious  matters.  It  will  be  sufficient  if  they  submit 
each  matter  expressly  to  three  or  four  of  them.  All  the  consultors 
however,  on  the  demise  of  a bishop,  will  be  expected  to  send  in 
writing  to  the  archbishop  those  who  in  their  opinion  should  be 


88 


promoted  to  the  vacant  See.  In  case  of  the  archbishop’s  death, 
word  is  to  be  sent  to  the  senior  bishop  of  the  province.  Let  them 
give  their  reasons  for  their  preference,  and  any  other  information 
which  will  be  of  use  to  the  bisho2)s  to  aid  them  for  their  recom- 
mendation to  the  Holy  See,  of  fit  priests  for  such  promotion.  We 
do  not  decree  this  as  a certain  and  fixed  law  to  bind  the  bishops 
in  their  action  either  with  regard  to  the  number  or  to  the  duties 
of  the  consultors,  leaving  the  matter  to  the  prudence  and  con- 
science of  the  bishops.” 

Evidently  Archbishop  Patrick  Kenrick,  of  Baltimore,  who  had 
been  the  delegate  apostolic  in  the  First  Plenary  Council  and  was 
responsible  for  the  most  important  part  of  its  legislation,  was 
determined  as  far  as  he  was  concerned  not  to  allow  it  to  become 
a dead  letter,  even  where  it  seemed  to  trench  upon  some  of  the 
prerogatives  which  the  bishops  had  heretofore  exercised,  without 
any  serious  attempt  at  limitation. 

How  far  this  legislation  was  put  into  practice  in  the  dioceses  of 
the  province  outside  of  Baltimore  diocese,  it  is  hard  to  say.  I have 
seen  it  quoted  by  a successor  to  Archbishop  Kenrick  as  the  recog- 
nized rule  for  Baltimore  even  before  the  Third  Plenary  Council. 
No  other  province  is  known  to  have  imitated  it. 

We  find  the  Propaganda  always  encouraging  any  action  of -the 
Provincial  or  Plenary  Councils  for  the  limitation  of  .the  very 
extensive  power  of  bishops  at  times  exercised,  through  human 
frailty,  to  the  detriment  rather  than  to  the  well  being  of  the 
portion  of  the  flock  under  their  control.  As  the  hand  of  authority 
reaches  quickest  and  most  heavily  their  co-laborers,  it  was  impor- 
tant that  some  of  these  should  be  recognized  to  have  an  official 
and  authoritative  voice,  having  a right  at  all  times  to  be  heard  in 
any  serious  peril  of  the  flock,  and  where  the  consciences  of  these 
counsellors  is  burdened  with  the  obligation  of  doing  what  lies 
with  them  to  avert  the  evil. 

The  Second  Plenary  Council  of  Baltimore  in  1866  while  repeat- 
ing the  decree  of  the  First  Plenary  Council  on  the  appointment 
of  Consultors,  laid  down  more  imperatively  the  necessity  of  having 
them.  No.  70  says  : “ As  bishops,  especially  in  this  country,  are 

overburdened  with  work,  and  because  of  their  charge  of  the 
temporal  and  sjDiritual  administration  of  the  diocese  are  too  busy 
of  themselves  alone  to  be  able  to  do  justice  to  their  office,  they 
must  call  to  their  aid  priests  of  recognized  piety,  zeal,  prudence 
and  learning,  who  will  aid  them  by  wise  counsel,  and  will  be  willing 
to  take  on  their  shoulders  a share  of  the  serious  Episcopal  respon- 
sibility. By  thus  acting,  the  second  order  of  .the  clergy  comes  to 


84 


the  assistance  of  the  first,  and  their  agreement  and  mutual  help 
give  unity  and  strength  to  the  administration  which  thus  tends 
smoothly  and  strongly  to  the  greater  glory  of  God  and  to  the 
salvation  of  souls.” 

As,  ho'wever,  none  of  the  councils  laid  down  in  any  positive 
manner  the  precise  and  definite  duties  belonging  to  these  consult- 
ors,  it  is  not  surprising  that  even  after  the  Second  Plenary  Council 
their  appointment  should  have  come  to  be  considered  for  many 
years  a mere  honorary  thing,  with  hardly  any  special  time  appointed 
for  meeting,  or  without  any  really  recognized  right  of  giving- 
advice  upon  any  matter  whatsoever  of  the  diocese. 

In  one  matter  the  Propaganda  found  it  necessary  to  intervene 
directly  with  the  exercise  of  its  own  authority  in  1878.  Whereas 
the  Consultors,  as  stated  above,  were  required  to  be  called  to 
adjudicate  the  cases  of  priests  charged  with  delinquency,  as  in 
many  dioceses  the  neglect  to  appoint  any  consultors  w^as  an  excuse 
for  omitting  the  prescribed  procedure,  the  Propaganda  sent  a pos- 
itive command  to  all  the  bishops  to  designate  five,  or  at  least  three 
priests,  whose  aid  and  counsel  they  would  be  compelled  to  seek 
before  disciplining,  or  in  any  way  chastising  a cleric,  and  before 
whom  any  cleric  accused  should  have  a perfect  right  to  claim  a 
thorough  investigation  of  the  charges  made,  before  any  attempt 
should  be  made  to  subject  him  to  punishment,  which  he  might 
claim  he  had  not  deserved. 

To  remedy  the  absence  of  the  consultors  the  Propaganda  had 
evidently  before  the  Third  Plenary  Council  of  Baltimore  in  1884 
determined  that  there  should  be  established  in  the  principal  dio- 
ceses of  the  United  States,  Chapters  or  the  ofiicial  senates  of  the 
bishop,  composed  of  a certain  number  of  priests  whose  appointment 
should  be  for  life,  one  half  at  the  beginning  to  be  chosen  by  the 
bishop,  the  other  by  the  clergy.  Afterwards  the  vacancies  in  this 
body  were  to  be  filled  by  the  bishop  whenever  any  of  his  appointees 
were  removed  by  death  or  otherwise,  and  the  other  vacancies  by 
the  Chapter. 

However  the  archbishops  and  bishops  who  in  1883  had  been 
summoned  to  Kome  to  examine  the  preliminaries  for  the  Plenary 
Council  made  such  strong  representations  against  the  appointment 
of  such  a legally  fixed  and  perpetual  body  to  limit  their  authority 
that  the  Holy  See  permitted  the  appointment  instead  of  a body  of 
consultors,  who  would  have  a great  many  of  the  powers  of  a regular 
Chapter  but  would  not  have  the  legally  recognized  and  clearly 
defined  authority  which  a Chapter  has  in  Canon  Law.  We  find 
however  a very  great  difference  between  the  consultors  as  appar- 


85 


ently  accepted  by  the  preliminary  conference  of  archbishops  and 
bishops  in  1883,  and  the  consultors  under  the  actual  enactment  of 
the  Third  Plenary  Council.  As  appointed  in  accord  with  the 
conclusions  of  the  preliminary  conference,  there  would  have  been 
comparatively  little  difference  between  them  and  the  members  of 
a Chapter.  Nominally  “movable  at  will”  it  would  have  been 
almost  as  difficult  to  remove  them  as  to  remove  a member  of  a 
Chapter.  The  Pro23aganda  sent  a very  strong  recommendation  to 
the  Plenary  Council  as  to  the  manner  of  their  appointment.  “ The 
consultors  of  a bishop  must  be  six  or  four  and  where  so  many 
cannot  be  had,  at  least  two.  The  consultors  are  to  be  chosen  half 
by  the  bishop  and  the  other  half  after  their  proposal  by  the  clergy. 
The  projDosal  by  the  clergy  is  to  be  in  this  way  : all  the  priests 
exercising  the  ministry  in  the  dioceses  will  offer  to  the  bishop  a 
list  of  those  whom  they  deem  worthy  of  the  position  of  consultors 
without  absolutely  determining  any  : from  this  number  the  bishop 
will  choose  those  whom  he  in  the  Lord  will  judge  to  be  the  more 
fitted  for  the  office.” 

This  original  pro]3osition  of  the  Propaganda  evidently  implied 
that  all  the  clergy  assembled  together  in  Synod,  where  the  selec- 
tion was  expected  to  be  made,  should  offer  a list  of  names  to  the 
bishop.  The  clergy  was  not  to  confine  itself  to  three  names,  but 
were  expected  to  give  more,  though  how  many  was  not  stated 
that  the  bishop  might  not  be  to  restricted  and  bound  to  take  some 
very  distasteful  to  himself,  even  though  the  clergy  might  have  them 
in  the  highest  esteem. 

The  committee  of  the  Third  Plenary  Council,  to  which  was 
referred  for  examination  this  strong  recommendation  of  the  Pro- 
paganda, unanimously  agreed  upon  a system  for  this  choice  whiSh 
would  insure  a tolerable  representation  for  the  clergy  and  secure 
great 'latitude  for  the  bishop.  The  selection  for  candidates  for  a 
bishopric  was  expressly  taken  for  the  basis  of  the  way  of  j^roposal 
on  the  23art  of  the  clergy.  As  those  having  the  right  to  nominate 
bishops  are  assembled  for  the  selection  of  three  names,  from 
whom  the  Holy  See  is  ex2)ected  to  choose  one,  so  it  was  the  unan- 
imous wish  of  the  committee  that  the  clergy  should  be  assembled 
to  designate  three  names  for  each  position  of  consultor  that  was 
to  be  given,  the  bishoj)  being  expected  to  choose  one  of  those 
three  for  the  j^lace. 

At  the  meeting  of  the  bishops  and  during  their  discussion  I 
have  been  assured  that  nothing  was  said  or  done  to  destroy  this 
j)ur23ort  of  the  committee’s  unanimous  suggestion.  The  Third 
Plenary  Council’s  decree  (No.  19),  merely  repeats  the  wording  of 


86 


the  Propaganda’s  recommendation,  with  the  additional  clause : 
“For  each  consultor  to  be  chosen  three  names  must  be  proposed; 
from  these  the  bishop  will  choose  those  whom  he  will  judge  in  the 
Lord  to  be  more  fitted  for  the  office.” 

A different  practice  has  been  introduced  into  some  dioceses,  viz ; 
that  each  individual  priest  sends  in  separately  three  names  for 
each  vacant  position,  so  that  where  there  are  in  a diocese  one 
hundred  priests,  hardly  any  will  escape  nomination  by  some  one, 
and  this  nomination  by  one  or  by  few  would  be  sufficient  to  comply 
with  the  letter  of  the  law  as  thus  interpreted,  and  the  bishop 
would  be  deemed  authorized  to  select  this  one,  who  could  not 
be  considered  to  have  been  proposed  by  the  clergy. 

This  very  serious  increase  in  the  number  of  candidates  would 
decrease  instead  of  increasing  the  representation  of  the  clergy, 
which  was  the  acknowledged  purport  of  the  proposal  of  the  Pro- 
paganda, and  of  the  unanimous  agreement  of  the  committee  of 
the  Council  in  charge  of  it,  and  certainly  there  is  nothing  in  the 
wording  of  the  decree  of  the  Council  to  contradict  this  interpre- 
tation, which  would  secure  for  the  clergy  some  tangible  represen- 
tation in  the  selection  of  half  of  the  consultors,  whose  advice  is 
authoritative  in  the  administration  of  a diocese. 


XIX. 


When  the  advice  of  the  consultors  is  necessary.  The  bishop  obliged  to  hear 
the  advice,  but  not  bound  to  follow  it.  Action  taken  without  this  advice 
null  and  void,  in  certain  defined  matters.  Serious  modifications  in  the  con- 
sultors’ duties  from  the  recommeudations  of  the  Propaganda.  The  consul- 
tors  appointed  for  three  years  only.  How  far  the  contracting  of  debts  for 
church  purposes  is  allowed. 

As  mention  was  made  of  “Chapters,”  or  the  body  of  clergy 
appointed  by  Canon  Law  to  assist  the  bishop  in  the  government  of 
his  diocese,  it  is  well  to  say  that  canonists  teach  that  while  Chap- 
ters in  their  outward  form  were  not  imposed  by  divine. law,  yet 
they  derive  in  their  essence  their  origin  from  the  Apostles  them- 
selves. In  the  very  early  days  of  the  Church  the  body  of  the 
clergy  whom  the  bishop  was  expected  to  call  to  his  aid  in  the 
administration  of  the  diocese  was  composed  of  twelve  priests  and 
seven  deacons,  modelled  upon  the  college  of  the  Apostles  and  the 
deacons,  as  established  in  Jerusalem  at  the  very  dawn  of  the 
Church’s  history.  In  the  “ Apostolic  Constitutions  ” they  are 
designated  as  counsellors  of  the  bishop  and  the  crown  of  the 
Church,  whose  office  entitles  them  to  take  part  in  every  judg- 


87 


ment.  In  the  fourth  century  the  Fourth  Council  of  Carthage  in 
the  23d  canon  decrees:  “The  bishop  shall  undertake  no  judicial 
action  except  in  the  presence  of  his  clergy;  his  decision  will  be 
invalid  if  not  sanctioned  by  his  clergy.”  The  31st  and  32d  canons 
decree:  “The  bishop  must  regard  Church  property  as  his  trust 
only,  not  as  his  possession.  If  a bishop  gives  away,  sells  or 
exchanges  any  portion  of  Church  property  without  the  consent 
and  signature  of  his  clergy,  it  is  invalid.” 

The  legislation  of  the  Church  which  to-day  gives  the  priests 
an  authoritative  part  in  the  administration  of  dioceses,  limiting 
and  restricting  the  bishop’s  power,  is  thus  seen  to  be  in  open 
accord  with  the  practice  from  the  earliest  days.  We  all  know 
that  the  greater  the  power,  the  greater  is  the  fear  of  abuse  from 
the  frailty  of  human  nature,  and  the  more  disastrous  the  results 
from  ill-considered  and  hasty  action.  Hence,  Nardi,  treating  of 
this  subject,  says,  that  even  in  the  early  days  of  the  Church: 
“the  Holy  See,  because  of  its  multitudinous  business,  and 
because  of  its  greater  dignity,  had  double  the  ordinary  number  of 
cardinal  priests,  that  is,  twenty-four  with  an  archpriest.” 

The  body  of  clergy  to-day  appointed  to  give  advice  to  the 
bishop  in  full  accord  with  the  Canon  Law  is  called  the  “Cathedral 
Chapter.” 

The  establishment  of  these  “Chapters”  was  desired  by  the  Car- 
dinals of  the  Propaganda,  who  presided  in  the  name  of  the  Holy 
Father  in  1883,  at  the  preliminary  conference,  to  prepare  for  the 
Third  Plenary  Council  of  Baltimore.  However,  the  archbishops 
and  bishops  of  the  United  States  represented  very  strongly  that 
chapters  with  all  their  fixed  rights  and  perpetuity  of  tenure,  were 
opposed  to  the  character  of  the  American  people;  that  it  would 
be  difficult  to  have  a body  of  clergy  that  could  be  brought 
together  for  the  purpose  of  a Cathedral  Chapter,  on  account  of 
the  distances  of  their  various  residences  and  the  expenses  of 
travel;  perhaps  too  their  new  dignity  might  be  a temptation  to  be 
an  obstacle  instead  of  an  aid  to  the  bishop,  perhaps  even  as  a 
cause  of  quarrels.  The  archbishops  and  bishops  were  advised  to 
give  attention  to  several  countries  into  which  these  “ Chapters” 
had  been  lately  introduced  as  England  and  Holland  without  the 
inconveniences  which  they  seemed  to  fear,  because  these  Chapters 
had  no  power  to  act  independently  of  the  bishop,  but  formed  one 
moral  body  with  him,  and  their  duty  was  to  treat  of  those  matters 
which  were  laid  before  it  by  the  bishop.  Meanwhile  they  might 
have  a substitute  in  a body  of  consultors,  one  half  of  whom  were 
to  be  selected  by  the  bishop  on  his  own  judgment,  the  other  half 


88 


to  be  taken  from  those  proposed  by  the  clergy,  which,  however, 
could  not  restrict  its  proposal  of  candidates  to  the  precise  number 
of  positions  to  be  filled,  but  was  expected  to  offer  a larger  number 
from  whom  the  bishop  might  pick  out  those  most  acceptable  to 
himself.  The  duties  of  these  consultors  as  epitomized  in  the  final 
instructions  sent  from  the  Propaganda  for  the  consideration  and 
legislation  of  the  Third  Plenary  Council  of  Baltimore  were  to  give 
advice,  first,  when  to  call  a diocesan  synod,  and  make  known  its 
decrees ; second,  when  to  divide  a parish  or  mission,  after  hearing 
the  rector’s  advice;^  third,  when  there  was  question  of  giving  a 
parish  in  charge  of  any  body  of  regulars,  in  which  case  there 
would  also  be  required  the  permission  of  the  Holy  See.  Their 
consent  would  be  required  for  the  purchase  or  sale  of  ecclesiasti- 
cal property,  the  seeking  of  mortgages  or  anything  else  that 
would  have  the  appearance  of  alienating  it.  The  details  of  the 
manner  in  which  the  alienation  or  semi-alienation  was  to  be 
effected  should  be  left  to  the  discretion  of  the  bishop.  He  was 
also  to  be  empowered  to  spend  three  hundred  dollars  without 
consultation.  The  consent  of  the  consultors  should  be  necessary 
for  the  appointment  of  a new  consultor,  and  of  the  examiners  of 
the  clergy  outside  of  the  synod  and  for  the  increase  of  the  bishop’s 
salary. 

The  actual  legislation  of  the  Third  Plenary  Council  made  radical 
changes  in  this  programme.  In  first  place  the  consultors  instead  of 
being  for  life  or  during  good  behavior,  are  appointed  for  three  years. 
Secondly,  their  advice  only  is  laid  down  as  authoritative,  their 
consent  is  not  required  in  anything;  though  it  was  clearly  under- 
stood that  the  consent  of  the  majority  was  all  that  was  meant  by 
the  consent  of  the  body  of  consultors.  Thirdly,  the  bishop’s 
power  was  enlarged  in  the  matter  of  spending  for  church  purposes. 
All,  priests  and  bishops,  readily  understood  that  in  constant 
recurring  needs,  of  building  and  renovating  churches  and  schools 
it  would  have  hampered  a bishop  to  restrict  him  to  such  small 
sums  as  three  hundred  dollars,  and  all  recommended  that  it  should 
be  enlarged  to  five  thousand  dollars.  But  the  Holy  See,  'which 
has  a perfect  dread  of  debt,  then  added  a clause  that  its  permis- 
sion would  be  required  for  the  expending  of  anything  above  this 
amount;  but,  on  further  representations  on  the  part  of  the  bish- 
ops, it  agreed  not  to  enforce  the  clause  for  the  space  of  ten  years, 
but  required  a statement  of  every  new  indebtedness  incurred  to 
be  put  down  in  the  rejDort  sent  to  the  Holy  See  by  the  bishop  of 
the  financial  state  of  his  diocese.  In  European  countries  it  seems 
to  be  deemed  an  imj^ropriety  to  have  any  church  property  encum- 


89 


bered  with  debt.  Yet  it  is  perfectly  clear  to  us,  that  unless  we 
were  able  to  build  with  borrowed  money  even  on  mortgaged 
property,  there  would  be  a sudden  stop  put  to  undertakings 
necessary  for  the  spiritual  welfare  of  the  people.  In  the  case  of 
building  a church,  where  the  impropriety  seems  greatest  to  have 
debt,  according  to  the  old  traditional  methods,  every  one  here 
perceives  that  besides  the  privation  of  Mass,  and  2:)reaching,  there 
would  also  be  the  very  serious  absence  of  the  best  source  of  rev- 
enue for  meeting  the  debt,  the  collections  and  pew  or  seat  rents 
during  the  services. 

With  the  immense  immigration  still  pouring  in  ujDon  us  from 
foreign  shores  a very  large  number  of  Catholics,  many  of  these 
would  be  exposed  to  great  peril  of  the  loss  of  the  faith  from  not 
having  a church,  which  would  be  the  case  if  all  the  amount 
required  for  the  building  of  a church  had  to  be  collected,  before 
it  was  erected;  while  these  peojde  themselves  will  be  enabled  to 
take  part  in  the  good  work  at  once  by  giving  gradually  a portion 
of  their  wages  for  its  maintenance  while  their  faith  is  being  nur- 
tured and  strengthened  in  a building,  even  though  it  have  that 
ugly  ornament  of  a mortgage.  Hence,  from  present  appearances 
that  dispensation  from  seeking  the  Propaganda’s  permission  to 
borrow  more  than  five  thousand  dollars  will  have  to  be  frequently 
renewed,  before  the  old  normal  state  of  old  Catholic  countries  can 
be  established  here  of  not  using  buildings  for  church  purposes 
which  are  encumbered  with  debt.  Improvements  often  cannot  be 
put  off  till  the  full  amount  required  for  them  is  in  the  treasury. 
The  ordinary  way  for  the  erection  of  churches  in  Catholic  countries 
where  the  church  is  free  is  to  obtain  from  a municipality  a site 
and  funds  not  only  to  build,  but  to  endow  the  church  for  the 
maintenance  of  the  clergy  attached  to  it.  At  times  a prince  or 
wealthy  person  erects  the  church  and  endows  it ; he  therefore 
receives  the  right  to  present  for  its  control  a clergyman  whom  the 
bishop  is  expected  to  accei3t  unless  he  should  know  him  to  be 
unworthy  of  the  charge.  In  Lower  Canada  the  civil  right  has  been 
maintained  for  the  bishop,  when  he  erects  a new  parish,  to  assess 
and  tax  each  individual  man  of  the  new  parish  according  to  his 
means  for  the  erection  of  a church,  rectory  and  schoolhouse. 
This  is  in  accord  with  the  old  French  law  that  was  in  force  before 
the  English  took  possession  of  Lower  Canada,  and  the  treaty 
between  France  and  England  still  binds  the  colony  to  respect  the 
rights  and  privileges  exercised  by  the  Church  previously  to  the 
occupation  of  Canada  by  England.  On  the  other  hand  to-day  in 
France,  the  Church  is  subjected  to  g'reat  hardships,  because  all 


90 


the  church  property  is  vested  in  the  State,  and  for  any  repairs  it 
is  necessary  to  have  permission  from  a State  bureau.  Even  the 
salaries  of  the  priests  and  bishops  are  a part  of  the  civil  budget 
submitted  annually  to  the  vote  of  Parliament. 

The  meetings  of  the  consultors  must  be  held  at  least  quarterly ; 
in  case  of  some  vast  dioceses,  half-yearly  meetings  will  suffice. 
But  everywhere  at  other  times  the  meeting  is  required  for  any  of 
the  important  transactions  that  have  been  enumerated.  It  is  not 
enough  to  consult  them  apart,  but  the  advice  must  be  sought  when 
they  meet  together  as  a board.  No  consultor  can  be  removed 
during  the  time  for  which  he  has  been  appointed  except  for  plain 
and  permanent  physical  incapacity  resulting  from  serious  illness, 
or  the  like,  or  else  for  some  grave  delinquency  juridically  proven 
or  of  such  public  notoriety  as  openly  to  affect  his  character  or 
public  reputation.  The  consultors  who  hold  the  position  at  the 
death  or  removal  of  a bishop  will  continue  in  their  position  until 
after  the  appointment  of  a new  bishop,  as  the  advisory  board  of 
the  administrator  of  the  diocese  during  the  vacancj^  and  then  for 
a further  period  until  the  newly  appointed  bishop  takes  steps  for 
the  selection  of  new  consultors,  which  he  is  obliged  to  make  within 
six  months  from  the  day  of  his  consecration,  in  the  way  already 
explained. 


CHAPTER  XX. 

The  desigDation  of  candidates  for  bishoprics  by  the  (’onsultors  and  irremovable 
rectors.  System  of  election  of  bishops  in  different  periods  of  the  history 
of  the  Church. 

A great  step  in  advance  in  favor  of  the  participation  of  priests 
in  the  care  of  a diocese  was  taken  by  the  Third  Plenary  Council 
of  Baltimore,  when,  under  direct  instructions  of  the  Propaganda, 
the  Fathers  of  the  Council  gave  the  designation  of  the  candidates 
for  a bishopric  into  the  hands  of  the  irremovable  rectors,  appoin- 
ted by  right  of  merit  manifested  in  a competitive  examination 
before  the  synodal  examiners,  and  of  the  consultors,  one  half  of 
whom  must  be  proposed  by  all  the  priests  of  the  diocese. 

Our  Lord  appointed  the  first  bishops  who  were  the  Apostles. 
We  find  that  when  a substitute  was  to  be  placed  in  the  forfeited 
episcopacy  of  Judas,  St.  Peter  counselled  all  the  gathering  of  120 
in  the  Upper  Chamber  of  Jerusalem  to  nominate  two,  from  whom 
the  final  appointment  might  be  determined  by  the  drawing  of 
lots.  Matthias  was  the  one  appointed.  Undoubtedly  this  prin- 
ciple manifested  itself  in  the  ver^^  comm.on  practice  in  the  early 


91 


'Church  that  whenever  there  was  a vacancy  the  other  bishops  of 
the  province  conferred  with  the  clergy  and  laity  of  the  vacant 
.See  in  the  nomination  and  appointment  of  the  new  bishop. 

The  people  were  the  first  ordinarily  to  indicate  their  general 
•desire,  which  was  taken  into  serious  consideration  by  the  clergy 
•of  the  diocese,  though  the  selec^tion  of  both,  if  found  to  be  really 
prejudicial  to  souls,  was  liable  to  be  put  aside  by  the  Metropolitan 
.and  other  bishops,  in  whose  power  alone  it  was  to  consecrate  the 
new  bishop.  In  the  fifth  century  St.  Leo  (can.  19,  dist.  63),  lays 
down  that  for  the  election  of  the  Metropolitan  “ the  bishops  of 
the  province  are  to  meet  at  the  Metropolitan  city,  that  after  hear- 
ing the  wish  of  all  the  clerics  and  the  citizens,  the  best  priest  or 
■deacon  of  that  church  may  be  ordained..” 

The  people  were  at  times,  especially  in  the  East,  represented  by 
the  most  imj^ortant  la}^  personages  of  the  diocese.  In  the  West, 
•especially  after  the  descent  of  the  barbarians  from  the  North,  the 
King’s  choice  took  the  place  of  the  nomination  by  the  people. 

About  the  twelfth  century  the  choice  of  the  bishop  was  left  in 
the  hands  of  the  “Chapter,”  or  body  of  clergy  officially  connected 
with  the  Cathedral,  subject  to  the  Metropolitan’s  approval,  and 
in  the  case  of  the  choice  of  the  Metropolitan  subject  to  the 
approval  of  the  Supreme  Pontiff,  from  whom  the  Metropolitan 
received  the  pallium  in  sign  of  the  granted  consent. 

In  the  fourteenth  century  the  Pope  reserved  to  himself  the  right 
•of  appointing  bishops,  and  hence  by  slow  degrees  even  the  nomi- 
nation by  the  “Chapter”  fell  into  desuetude,  notwithstanding  the 
very  earnest  effort  of  the  Council  of  Basle  to  revive  not  merely  the 
nomination  but  the  election-  of  bishops  by  means  of  the  “ Chap- 
ters.” Pope  Leo  X,  in  1516,  made  a concordat  with  the  King  of 
France  (Francis  I),  granting  to  him  the  nomination  to  all  bishop- 
rics and  abbacies  in  France.  This  concordat  became  an  object  of 
admiration  and  imitation  for  other  sovereigns,  and  to-day  this  is 
quite  a common  way  for  the  selection  of  bishops  in  the  so-called 
Catholic,  countries  of  Europe. 

The  article  of  the  concordat  of  1801,  with  the  First  Napoleon 
•on  this  point,  and  which  is  still  to-day  the  rule  for  France,  reads; 
“ The  first  Consul  will  name  the  new  bishops  for  all  future  vacan- 
cies of  Episcopal  Sees,  and  the  Apostolic  See  will  grant  them 
canonical  institution,  in  accordance  with  the  form  used  for  France 
before  the  change  of  government.”  A proviso  was  fortunately 
added  that  the  foregoing  rule  should  not  hold  if  any  of  the  first 
Consul’s  successors  should  not  profess  the  Catholic  faith. 


92 


The  Holy  See  recognized  very  speedily  the  evils  that  easily 
arise  in  the  church  from  these  concessions  to  the  temporal  rulers 
and  has  not  failed  to  do  away  with  them  whenever  It  had  the 
power. 

Strange  to  say,  the  church  was  able  to  do  this  less  in  Catholic 
than  in  Protestant  countries,  though  perhaps  there  is  a natural 
explanation  in  the  fact  that  a professedly  Protestant  government 
could  hardly  expect  to  thrust  itself  into  the  government  of  church 
matters,  as  much  as  so-called  Catholic  governments  dared  to  do,, 
under  pretence  of  compensation  for  the  protection  which  they 
are  supposed  to  give  to  the  church  recognized  by  law  as  the 
church  of  the  state. 

The  enslavement  of  the  church  has  too  often  been  the  result  of 
this  pretended  protection. 

In  the  concordats  in  this  century  with  the  Protestant  govern- 
ments of  Europe  the  Holy  See  revived  the  election  of  bishops  by 
the  Chapters.  Thus  in  1821  in  Prussia  the  Chapters  were  author- 
ized “to  elect  the  new  bishops  from  among  the  ecclesiastical  resi- 
dents of  Prussia,  who  should  be  worthy  and  fitted  according  to 
Canon  Law.”  The  concordat  with  Hanover  in  1824  required  that 
all  the  clergy  should  select  a certain  number  of  candidates,  those 
distasteful  to  the  government  to  be  dropped,  the  others  to  be 
submitted  for  final  choice  to  the  Chapter;  finally  the  name  of 
the  appointee  to  be  made  known  to  the  Supreme  Pontiff,  who 
would  confirm  the  choice,  unless  he  found  the  candidate  to  be 
unfitted  for  the  position.  In  1828  the  Holy  See  agreed  with  the 
four  Swiss  Cantons  of  Lucerne,  Berne,  Soleure  and  Zug:  that 
“the  canons  forming  the  senate  (Chapter)  should  have  the  right 
to  nominate  the  bishop  from  among  the  clergy  of  the  diocese; 
and  that  the  Holy  Father  will  confirm  him  as  soon  as  he  obtains 
information  of  the  candidate’s  fitness  according  to  the  customs  of 
the  Swiss  church.”  In  1845  the  concordat  with  the  Swiss  Canton 
of  St.  Gall  decrees  that  the  Cathedral  chapter  shall  have  the  elec- 
tion of  the  bishop,  who  is  to  be  confirmed  by  the  Hol}^  See;  and 
that  to  be  eligible  for  the  episcopacy  it  is  necessary  that  besides 
having  the  canonical  fitness  the  candidate  be  selected  from  the 
diocesan  clergy  after  having  for  several  years  been  worthily  and 
with  distinction  engaged  in  the  cure  of  souls,  public  teaching  or 
the  administration  of  the  diocese. 

We  are  all  aware  that  as  a condition  for  the  emancipation  of 
Catholics  in  England  the  British  government  was  extremely 
anxious  to  obtain  the  right  of  veto  over  the  election  of  bishops 
in  England  and  Ireland.  Special  motives  of  gratitude  had  bound 


the  Holy  See  to  grant  much  to  Lord  Castlereagii,  who  had 
been  at  the  Congress  of  Vienna  in  1815  largely  instrumental 
in  the  return  of  the  Pontifical  States  to  the  Pope.  There  was 
even  an  appearance  of  yielding  to  this  wish  of  the  British  govern- 
ment to  obtain  this  veto,  but  undoubtedly  the  Holy  See  was 
delighted  to  see  the  vigorous  protest  of  the  bishop  of  England, 
Milner,  and  of  the  Irish  bishops  and  of  Daniel  O’Connell,  backed 
by  the  vast  body  of  the  Irish  people  against  any  such  concession. 
This  gave  the  Holy  See  an  oj^portunity  for  delay,  and  when  Cath- 
olic emancipation  was  granted,  the  motive  of  conceding  the  right 
of  veto  had  vanished. 

In  the  United  States  in  1789  all  the  priests,  exercising 
the  ministry,  had  been  granted  by  the  Hoty  See  the  privilege 
of  determining  in  what  city  the  first  Episcopal  See  should 
be  established  and  who  should  be  the  first  bishop.  Baltimore 
Avas  fixed  as  the  first  See,  and  the  Rev.  John  Carroll  was 
appointed  the  first  bishop.  At  the  first  diocesan  synod,  in  1791, 
Bishop  Carroll  consulted  Avith  the  assembled  clergy  as  to  the 
propriety  of  establishing  another  ejoiscopal  See  or  tire  appoint- 
ment of  a coadjutor  for  himself.  The  latter  alternative  Avas 
adopted;  and  Rev.  Leonard  Neale  Avas  appointed  coadjutor. 
When  in  1808  Bishop  Carroll  suggested  again  the  division  of  his 
diocese,  immense  in  territory,  the  Holy  See  folloAved  his  recom- 
mendation in  appointing  to  the  bishoprics  of  Boston  and  Bards- 
toAvn  and  Philadelphia  the  Abbes  Cheverus  aud  Flaget  and  the 
Franciscan  friar,  Rev.  Michael  Egan,  Avhilst  the  Holy  See  took 
into  its  OAvn  hands  the  aj)pointment  for  Ncav  York,  that  of  the 
Dominican  friar.  Rev.  Luke  Concanen,  Avho  resided  in  Rome.  In 
1818  the  Catholics  of  North  and  South  Carolina  and  Georgia  sent 
a petition  to  the  Holy  See  through  an  Augustinian  friar,  the  Rev. 
Robert  BroAvne,  asking  for  the  division  of  the  large  diocese  of 
Baltimore;  and  the  erection  of  the  dioceses  of  Richmond  and 
Charleston  was  the  result;  though  for  tAventy  years  the  adminis- 
tration of  Richmond  diocese  was  left  in  the  hands  of  the  Arch- 
bishojD  of  Baltimore. 

The  multiplication  of  provinces  as  well  as  of  dioceses  induced 
the  Propaganda  in  1834  to  lay  down  the  method  to  be  folloAved 
for  the  designation  of  candidates  for  bishoprics.  All  the  bishops 
of  a province  were  empowered  to  take  part  in  the  selection  and 
recommendation  of  candidates  to  a bishopric.  Each  bishop  was 
also  required  to  make  out  a list  of  three  candidates,  from  whom 
he  Avould  wish  his  successor  to  be  appointed.  A bishop  wishing 
a coadjutor  could  select  three  candidates.  The  bishops  of  the 
province  could  add  other  three  names  if  they  thought  fit.  All 


94 


these  names,  with  remarks,  were  to  be  forwarded  to  the  Congre- 
gation of  the  Propaganda,  as  recommended  for  the  bishopric.  The- 
Holy  See  appointed  the  bishop.  A later  provision  was  added  by 
the  Propaganda  in  1850,  at  the  request  of  the  Seventh  Provincial 
Council  of  Baltimore,  that  these  names  should  be  transmitted  to- 
the  Archbishops  of  the  other  provinces  to  give  them  a chance  of 
communicating  to  the  Propaganda  any  information  they  might 
think  proper  about  the  proposed  candidates.  This  was  again 
restricted  in  1856,  at  the  request  of  several  provinces,  to  the  selec- 
tion of  candidates  for* a bishopric  who  resided  outside  the  province, 
and  to  the  selection  of  candidates  for  the  Metropolitan  Sees.  In 
1859  the  Propaganda  asked  all  the  archbishops  whether  they  had 
any  suggestion  to  make  in  the  way  of  improving  the  method  of 
designating  candidates  for  bishoprics,  but  they  replied  that  they 
had  none  to  offer.  In  1861  the  Propaganda  added  the  require- 
ment that  every  three  years  each  bishop  should  send  to  the  Met- 
ropolitan and  to  the  Propaganda  the  names  of  priests  reputed  to 
be  fit  for  bishoprics,  specifying  their  qualifications.  In  the  case- 
of  a vacancy  they  were  to  meet  to  discuss  the  qualifications  of  the 
candidates  and  to  agree  upon  three  names  to  be  sent  to  the 
Propaganda. 

Undoubtedly  among  the  priests  there  had  been  for  a long  time 
a very  strong  feeling  that  the  selection  by  priests  of  the  diocese 
would  be  a more  satisfactory  means  of  designatiu  g the  candidates 
for  the  bishopric  ; and  finally  their  wishes  were  heeded  in  the 
legislation  of  the  Third  Plenary  Council  of  Baltimore,  which 
under  instructions  from  the  Propaganda  gave  to  the  consultors 
and  the  irremovable  rectors  the  designation  of  three  candidates, 
with  the  reservation  of  a veto  to  the  bishops  of  the  province. 


CHAPTER  XXI. 


Principles  guiding  tlie  present  selection  of  candidates  for  bishoprics.  Method 
to  be  followed  by  the  consultors  and  irremovable  rectors  in  designating 
candidates.  Independence  required  in  the  designation  of  candidates. 
Hence  the  irremovability  of  electors  is  important.  Instruction  from  Rome- 
of  1587  to  safeguard  the  position  of  all  missionary  rectors. 


An  illustration  of  the  difficulties  in  the  matter  of  appointing 
bishops  in  so-called  Catholic  countries  may  be  found  in  the  serious 
conflict  which  has  just  come  to  a head  between  the  Holy  See  and 
the  Hungarian  Government.  This  Government  has  actually  under- 
taken to  transfer  by  its  own  authority  two  bishops  from  Sees  to- 


which  they  were  appointed,  without  even  consulting  the  Supreme 
Pontiff.  It  claims  the  right  of  nominating  and  transferring  bishops 
as  belonging  to  the  Crown  of  Hungary  ever  since  the  days  of  the 
Apostolic  King,  St.  Stephen,  the  Pope  only  having  the  right  tO’ 
preconise  them,  or  announce  their  appointment.  Pope  Alexander 
III,  in  the  twelfth  century,  had  attempted  to  restrict  this  claim, 
but  in  vain.  The  Government  has  ever  since  asserted  its  supposed 
prerogative.  Leo  XIII,  has  undertaken  to  limit  it. 

This  and  similar  conflicts  give  us  the  key  to  the  explicit 
instruction  which  the  Propaganda  gave  to'  our  bishops  in  1834, 
when  laying  down  the  rules  for  the  selection  of  candidates  for 
bishoprics.  As  the  Holy  See  has  reserved  to  itself,  wherever  it 
can  enforce  the  reservation,  the  appointment  of  bishops  through- 
out the  world,  the  Propaganda  cautioned  the  bishops  of  the  United 
States  not  to  use,  when  presenting  their  choice  of  candidates,  the 
words  nomination,  election  or  any  other  that  might  indicate  the 
final  determination  of  any  individual  to  an  Episcopal  See.  They 
should  simply  designate  those  whom  they  thought  fitted  for  the 
vacant  Sees.  The  nomination  proper  and  especially  the  appoint- 
ment would  remain  entirely  in  the  power  of  the  Holy  See,  which 
might,  when  It  thought  proper,  pass  over  all  the  names  offered, 
and  ap23oint  whomsoever  It  thought  fit. 

The  same  principle  governs  the  new  form  of  selection  of  candi- 
dates for  bishoprics,  which  was  established  by  the  Third  Plenary 
Council  of  Baltimore  in  accordance  with  the  instructions  of  the 
Propaganda,  as  accepted  in  the  preliminary  conference  of  arch- 
bishops and  bishops  in  Kome  in  1883. 

Here  is  the  instruction  as  laid  down  by  the  Propaganda  : • 
“ When  there  is  a question  of  proposing  to  the  Holy  See  the  names 
of  those  who  appear  worthy  of  recommendation  for  vacant 
Episcopal  Sees,  in  first  place  the  consultors  should  meet  with  the 
irremovable  rectors  of  the  vacant  diocese,  that  they  may  indicate 
the  names  of  those  whom  they  judge  to  be  worthy  to  the  bishops, 
who  are  to  have  in  view  the  qualifications  required  by  the  Holy 
See  in  the  proposed  candidates.  This  meeting  of  the  consultors 
and  rectors  will  be  presided  over  by  the  archbishop,  or  a suffragan 
bishop  of  the  same  province  to  be  deputed  by  him  if  the  archbishop 
cannot  be  there;  if  there  were  question  of  the  Metropolitan  See, 
the  meeting  will  be  presided  over  by  the  suffragan  bishop,  who 
is  the  senior  in  order  of  consecration,  or  if  he  cannot  be  there,  by 
another  deputed  by  him.  The  rectors  and  others,  as  above,  will 
give  their  vote  after  taking  an  oath  that  their  suffrage  is  not 
founded  on  mere  interest  or  favor  ; ^this  suffrage  will  be  merely 


96 


consultative.  The  president  will  send  a report  of  this  meeting  to 
the  Sacred  Congregation  and  to  the  bishops.  On  an  appointed 
day  the  bishops  will  meet  to  discuss  the  proposed  names  and 
others  that  may  be  offered  by  them,  in  accordance  with  the 
instruction  of  1861,  and  then  will  make  out  a list  of  three  candi- 
dates to  be  presented  to  the  Apostolic  See.  If  they  should  judge 
that  the  names  proposed  by  the  clergy  should  not  be  admitted, 
they  will  be  expected  to  give  the  reasons  to  the  Sacred  Congrega- 
tion.” 

This  was  the  plan  proposed  originally  by  the  Propaganda,  with 
the  exception  of  not  requiring  the  presence  of  a bishop  as  presid- 
ing officer  at  the  clergy’s  meeting,  which  was  proposed  by  the 
American  archbishops  and  bishops  at  the  preliminary  conference 
and  accepted  by  the  Propaganda.  The  Third  Plenary  Council 
follows  almost  precisely  the  wording  of  the  Instruction,  adding- 
only  that  the  voting  by  the  clergy  is  to  be  secret,  which,  I pre- 
sume, means  by  ballot.  There  are  also  added  the  special  rules 
for  the  selection  of  candidates  for  a coadjutor  to  a bishop.  Then 
the  bishop  himself  or  a clergyman  deputed  by  him  will  preside  at 
the  meeting,  and  he  is  authorized  to  suggest  the  names  of  those 
whom  he  would  deem*  most  acceptable  to  himself,  and  even  to 
make  out  a list  of  his  own. 

If  a new  diocese  is  to  be  formed,  the  consultors  of  the  diocese 
or  dioceses,  from  which  the  new  one  is  to  be  taken,  and  the.  irre- 
movable rectors  of  the  district  newly  formed  into  a diocese,  are 
to  meet  for  the  designation  of  the  candidates.  In  both  of  these 
special  cases,  the  selection  of  the  candidates,  as  in  the  first  gen- 
eral rule  laid  down,  is  to  be  submitted  to  the  judgment  of  the 
bishops  of  the  province,  before  the  Holy  See  will  take  final  action. 

There  has  been  an  important  change  made  in  the  make-up  of 
the  electors,  or  as  we  should  perhaps  more  properly  call  them, 
designators  of  candidates  for  a bishopric.  The  first  intention  of 
the  Holy  See  was  that  the  consultors  of  the  bishop  should  be  for 
life,  or  at  least  until  a serious  cause  should  be  found  for  putting 
them  aside;  but  it  has  accepted  the  serious  modification  proposed 
by  the  Third  Plenary  Council  that  their  term  of  office  should  only 
be  for  three  years.  Their  appointment  is  thus  subject  to  a trien- 
nial modification  whereby  the  bishop  again  selects  one-half  accord- 
ing to  his  own  wish  and  the  other  half  from  three  names  proposed 
by  the  clergy  for  each  position.  Only  the  board  of  consultors  that 
happens  to  be  in  existence  at  the  time  of  the  vacancy  by  death  or 
removal,  or  the  choice  of  a coadjutor  will  to  a certainty  form 
part  of  the  electing  or  designating  board.^  This  part,  even  though 


97 


consultative  in  the  appointment  of  bishops,  is  reasonably  deemed 
a great  privilege  of  the  irremovable  rectors;  and  it  is  an  advan- 
tage that  their  position  is  very  explicitly  secured  by  law,  to  insure 
them  full  freedom  in  opposing  the  selection  of  any,  whose  appoint- 
ment they  would  deem  improper  for  the  welfare  of  religion. 
Their  individual  judgment  may  be  wrong  in  expecting  evil  con- 
sequences from  a particular  appointment;  yet  it  is  important 
that  the  expression  of  their  opposition  should  not  render  them 
liable  to  suffer  materially  from  the  dislikes  or  prejudices  of  those, 
to  whose  selection  they  offered  objection,  it  is  to  be  presumed, 
from  honest  motives.  This  is  the  special  advantage  of  the 
so-called  irremovable ' rectors,  that  they  cannot  be  removed  from 
their  position  under  any  circumstances,  except  by  the  form  of 
procedure  imposed  upon  the  Church  in  the  United  States  by  the 
Propaganda,  and  embodied  in  the  decrees  of  the  Third  Plenary 
Council.  Even  physical  incapacity  and  want  of  ability  to  admin- 
ister the  spiritual  or  temporal  affairs  must  in  the  case  of  irre- 
movable rectors  be  subjected  to  the  rigid  examination  of  this  new 
form  of  procedure;  and  even  then  it  is  necessary,  if  at  all  possible 
for  the  parish  to  bear  the  burden,  to  .appoint  an  administrator, 
who  will  take  charge  of  the  department  wherein  the  deficiency  is 
marked.  Even  then  the  irremovable  rector  is  not  deprived  of  his 
vote  at  the  meeting  of  consultors  and  irremovable  rectors  for  the 
selection  of  candidates  for  the  bishopric.  He  would  forfeit  this 
vote,  if  his  absolute  removal  were  found  necessary,  even  in  the 
case  where  he  would  be  entitled  to  be  called  rector  emeritus  or 
honorary  rector,  and  another  acting  irremovable  rector  were 
appointed  in  his  place. 

The  Propaganda,  in  a decision  dated  March  28th,  1887, 
emphasizes  again  the  distinction  between  the  movable  and 
irremovable  rectors,  yet  very  significantly  gives  greater  facil- 
ities for  the  examination  of  complaints  against  the  action 
of  bishops  who  should  attempt  to  transfer  the  so-called  mov- 
able rectors  from  one  office  to  another  without  grievous  cause. 
After  stating  that  even  these  movable  rectors  cannot  be  removed 
from  their  position  or  be  otherwise  punished,  for  delinquency  or 
the  violation  of  a disciplinary  enactment,  except  after  the  right 
has  been  offered  them  of  an  investigation  by  the  new  form  of 
trial,  the  Declaration  of  the  Sacred  Congregation  admits  that  a 
mere  transfer  in  their  case  does  not,  as  it  would  in  the  case  of  an 
irremovable  rector,  require  this  full  process  of  law,  though  this 
transfer  must  always,  in  every  case,  proceed  only  from  grievous 
reasons.  At  times  even  an  assignment  to  a lower  position  may 


98 


not  require  the  process  of  law,  if  it  has  not  the  appearance  of 
punishment. 

There  are  especially  with  the  rapid  growth  of  our  communities 
frequently  recurring  cases  where  serious  administrative  reasons 
may  suggest  such  transfers.  A new  church  may  be  required, 
new  institutions  ma}"  be  found  necessary  in  a communit}"  which 
was  perhaps  quite  small,  when  placed  in  charge  of  a rector.  He 
may  be  sickly,  or  a poor  temporal  administrator;  yet  the  new 
work  is  imperatively  needed  for  the  good  of  souls.  -No  disgrace 
will  be  entailed  upon  him  by  his  removal,  even  though  it  be  dis- 
tasteful to  him.  The  bishop  is  allowed  in  the  case  of  movable 
rectors  to  make  this  transfer  for  such  or  similar  grievous  reasons, 
without  the  process  of  law. 

In  the  case  of  irremovable  rectors,  the  harm  to  souls  is  not 
very  likely,  because  the  districts  forming  their  parishes  are  most 
likely  to  be  fairly  and  fixedly  settled,  having  already  the  neces- 
sary institutions  for  the  welfare  of  souls.  Then  the  law  provides 
for  the  appointment  of  an  administrator  to  remedy  any  such  evil 
in  their  case  without  the  removal;  and  the  Propaganda,  guided 
by  the  advice  of  our  bishops,  did  not  wish  to  place  such  a burden 
upon  the  movable  missions,  many  of  which  are  supposed  to  be 
subject  to  the  many  fluctuations  of  immigration.  Even  in  these 
cases,  if  the  rector  removed  considers  himself  to  have  been  sub- 
jected to  some  great  hardship,  even  without  the  appearance  of 
undergoing  punishment,  the  Propaganda  now  holds  out  to  him 
the  prospect  of  an  easy  way  of  settling  the  cause  of  his  complaint, 
because  it  promises  that  in  future  instead  of  giving  him  the  trou- 
ble of  sending  a long  discussion  of  it  to  Rome,  it  will  remit  the 
complaint  to  the  judgment  of  the  Metropolitan,  or  in  case  of  a 
complaint  against  a Metropolitan,  to  the  nearest  Metropolitan. 
This  facilitates  the  redress  of  grievances,  and  yet  does  not  shut 
off  the  final  consideration  by  the  Propaganda  itself,  if  really 
necessary,  of  an  inflicted  grievance,  because  It  never  gives  up  the 
right  of  revising  the  decision  of  its  own  deputy.  But  in  no  case 
where  any  such  transfer,  and  especially  the  lowering  of  position, 
should  put  on  the  appearance  of  punishment,  would  the  Equity 
of  Roman  legislation  allow  it  to  occur  wdthout  the  right  to  the 
full  procedure  required  for  the  disciplining  or  chastisement  of 
clerics  laid  dowm  under  instruction  from  Rome  by  the  Third 
Plenarv  Council. 


99 


CHAPTER  XXIL 

Translations  of  bishops  and  rectors  discountenanced  by  the  laws  of  the  Church. 
No  removnl  as  punishment  without  the  right  to  a trial.  Wrong  should  not 
be  done  that  good  may  come.  Motives  for  a transfer.  Hardships  that  may 
occur  in  transfers. 

In  answer  to  the  pretension  of  the  Hungarian  Government  to 
transfer  from  their  Sees,  two  bishops,  the  Holy  See  pointed  out 
the  old  and  traditional  simile  in  the  Church,  which  “ compares  the 
bond  which  binds  a bishop  to  his  See  to  that  of  matrimony  which 
binds  man  and  wife.  This  bond  can  therefore  be  severed  only  for 
grave  reasons  and  ought,  as  a general  rule,  to  remain  intact;  such 
translations  are  made  by  the  Church  herself  very  rarely,  and  that 
for  very  weighty  reasons.” 

As  a matter  of  principle,  “ a bishop  who  is  well  qualified  for  one 
See  is  not  necessarily  suited  for  another,  where  the  circumstances 
may  be  altogether  different.  Again,  a bishop  who  has  gained  a 
thorough  knowledge  of  people  and  things  in  one  diocese,  may  thus 
be  called  away  to  a diocese  where  he  is  a perfect  stranger,  and  has 
to  begin  to  painfully  acquire  all  this  knowledge  over  again.” 

These  principles  so  clearly  announced  about  the  translations  of 
bishops  run  through  all  the  legislation  and  enactments  of  the 
Church  wherever  especially  the  charge  of  souls  is  the  object  in 
view. 

The  shepherd  must  know  his  sheep,  and  they  must  know  his 
voice.  Even  in  the  subdivisions  of  the  flock  it  is  important  that 
this  constant  relation  be  kept  up.  Hence  an  appointment  to  any 
position  connected  with  the  care  of  souls  is  intended  by  the 
Church  to  be  permanent,  even  where  there  may  not  be  a strictly 
legal  perpetuity  attached  to  the  office. 

The  legal  perpetuity  does  not  necessarily  involve  absolute 
irremovability.  It  is  well  to  remember  that  even  the  bond. of 
matrimony  is  not  so  strictly  binding,  as  not  to  admit  legal  separ- 
ation for  serious  incompatibility  of  temper  or  for  cruelty.  It  would 
not  do  to  push  the  idea  of  irremovability  from  the  charge  of  a 
diocese  or  a parish  to  the  extent  of  never  admitting  the  removal 
without  the  consent  of  the  incumbent,  where  there  should  be 
grievous  neglect  of  duty,  or  serious  imprudence  which  should 
threaten  to  permanently  alienate  a large  portion  of  the  flock.  If 
a delinquency  is  charged,  which  will  be  likely  to  carry  with  it 
punishment  or  disgrace,  a fair  and  thorough  investigation  under 
the  prescribed  forms  of  law  is  not  merely  a privilege  that  may  be 
granted  to  or  withheld  from  the  accused,  but  a strict  legal  right. 


100 


which  should  alwaj^s  be  offered  and  can  never  be  justly  denied 
him. 

The  natural  law  prohibits  the  chastisement  of  any  one  whose 
guilt  is  not  manifest.  And  the  universal  sense  of  mankind  requires 
that  any  one  charged  with  delinquency  must  have  a proper  chance 
of  vindicating  himself.  No  man  must  be  punished  unheard.  And 
all  church  legislation,  especially  that  made  under  the  guidance 
of  the  supreme  authority  invariably  recognizes  this  principle. 

At  times,  however,  there  are  good  reasons  entirely  apart  from 
wrong-doing  which  may  prompt  one  to  renounce  his  position;  and 
these  reasons  may  become  so  imperative  as  to  call  from  the  higher 
authorities  an  exceptional  strong  pressure,  even  a certain  coercion 
to  obtain  his  resignation.  The  welfare  of  the  people  is  undoubt- 
edly the  supreme  law,  and  the  salvation  of  souls  is  the  cause  above 
all  other  causes  to  prompt  the  action  of  the  Church. 

Provision  is  therefore  always  made  for  the  removal  or  transfer 
of  a bishop  from  a diocese  and  of  a rector  from  a parish,  even  where 
there  should  not  be  any  charge  of  moral  wrong-doing.  The  per- 
manent dislike  of  the  people,  sufficient  to  alienate  them  from  using 
their  ministry,  when  clearly  made  manifest,  is  such  a powerful 
motive,  even  though  at  times  there  may  be  no  wilful  wrong-doing* 
or  at  least  none  sufficient  to  produce  so  great  an  evil.  Where  this 
extraordinary  reason  for  making  a transfer  imperative  may  exist 
without  sin  on  the  part  of  the  incumbent,  it  has  always  been  deemed 
necessary  to  safeguard  the  reputation  of  the  one  so  transferred. 
Even  the  welfare  of  the  people  is  not  a sufficient  reason  to  do  an 
injustice  to  an  individual.  Wrong  should  not  be  done,  that  good 
may  come.  The  transfer  should  therefore  never  be  made  for 
such  motives  to  a position  markedly  lower,  for  such  lowering* 
would  imply  in  the  cases  supposed  a delinquency  where  there  had 
been  but  lack  of  discretion  or  incompatibility  of  temper.  Hence 
came  the  Roman  adage  and  shrewd  practice,  that  “a  man  is  pro- 
moted to  be  removed.”  A higher  honorary  position  may  be  given 
to  take  aw^ay  from  doing  harm  one  who  has  been  found  perhaps 
full  of  zeal  but  indiscreet;  the  higher  position  may  easily  be  such 
as  to  remove  him  from  the  likelihood  of  his  repeating  the  harm. 
Only  delinquency  can  be  punished,  other  defects  should  if  possible 
be  corrected  ; they  must  be  tolerated  in  one  whose  sacred  charac- 
ter shuts  off  for  life  any  other  career. 

In  the  case  of  a bishop,  who  is  removed  for  similar  motives  to 
those  adduced  above,  very  frequently  if  removed  entirely  from  his 
diocese,  he  is  appointed  a titular  archbishop.  This  at  once  before 
the  public  saves  his  honor  and  reputation.  In  the  case  of  an 


101 


irremovable  rector  in  the  United  States  being  found  utterly  incap- 
able, Witlibilt'  ihoi^al  fault  of  his,  to  administer'^  the  parish,  it  is 
provided  that  he  will  receive  the  title  of  honorary  rector.  The 
case  is  mor6  difficult  when  there  is  question  of  the  movable 
rectors.  If  4s  settled  clearly  by  the  latest  decision  of  the  Propa- 
ganda of  March  28,  1887,  that  they  must  never  be  removed  for  a 
delinquency  or  for  a violation  of  disciplinary  enactments,  or 
punished  in  any  way,  without  the  offer  of  a trial  by  the  procedure 
prescribed  for  the  United  States  by  the  Propaganda  in  1883.  It 
is  also  clearly  laid  down  that  they  must  not  be  transferred  from 
one  mission  to  another  except  for  grievous  reasons.  The  above 
reasons  given  for  the  transfer  even  of  a bishop  or  an  irremovable 
rector  are  among  the  reasons  why  the  transfer  of  the  movable 
rectors  maj"  take  place.  The  essential  difference  is  that  for  the 
transfer  of  a “ movable  ” rector  there  is  not  prescribed  the  form  of 
procedure,  or  thorough  investigation  required  in  the  former  cases. 
The  conscientious  judgment  of  the  bishop  of  the  necessity  of  such 
transfer  is  sufficient  for  his  guidance;  yet  he  is  obliged  to  hold 
himself  in  readiness,  on  presentation  of  complaint  to  his  and  the 
priest’s  superior,  to  give  the  motives  which  may  have  induced  him 
to  make  the  transfer.  If  these  motives  were  not  clearly  sufficient 
the  Church  legislation  provides  for  a reversal  of  the  act  of  transfer 
because  the  spirit  of  this  legislation  is  opposed  to  such  transfers, 
and  the  presumption  is  against  them.  The  burden  of  proof  of 
the  wisdom  of  the  act  falls  upon  him  who  has  followed  an  except- 
ional course.  Again,  whilst  the  movable  rector  may  not  object 
to  the  transfer  from  the  mission  over  which  he  has  presided,  he 
may  find  some  sj^ecial  hardship  in  the  mission  to  which  he  has  been 
transferred  detrimental  to  his  health,  or  involving  fatigues  to 
which  his  age,  settled  tastes,  or  health  may  render  him  inadequate. 
If  there  should  be  a sufficient  lowering  of  his  position  to  admit 
easily  the  suspicion  of  wrong-doing,  where  there  has  been  none 
alleged,  he  would  have  a clear  right  to  indemnification  for  the  loss 
of  reputation. 

If  any  wrong-doing  had  been  alleged,  he  would  have  had  a clear 
right  to  a trial  by  the  prescribed  procedure,  if  he  desired  it. 
There  are  undoubtedly  cases  where  lowering  of  position  may  be 
justified  by  notorious  incapacity  where  no  suspicion  of  wrong  will 
be  aroused;  but  these  are  very  rare.  In  them  the  bishop  is  auth- 
orized to  follow  his  conscientious  judgment,  subject  to  revision  by 
his  superior.  All  church  legislation  is  diametrically  opposed  to 
the  system  of  patronage  which  so  easily  creeps  into  the  dispensing 
of  offices  and  positions  in  worldly  governments  from  personal 


102 


favor  or  from  interested  motives.  The  church  stigmatises  as 
simony  not  merely  bribery  ( munus  a manu)  but  flattery  ( munus  a 
lingua)  directed  to  secure  spiritual  gifts  of  position.  This  spirit 
manifests  itself  in  the  oath,  required  of  the  priests  who  are  to 
designate  the  candidates  for  a bishopric,  that  they  are  induced  by 
no  personal  interest  or  favor  to  present  any  name  for  this  ofiice. 
In  the  same  way  the  Council  of  Trent  provided  that  for  the 
appointment  to  parishes  there  should  be  by  the  impartial  synodal 
examiners  a thorough  preliminary  examination  in  all  the  branches 
of  theological  knowledge  and  practice  of  the  candidates.  The 
bishop  is  required  to  choose  from  those  declared  fit  for  the  position 
the  one  whom  he  conscientiously  believes  to  be  the  best  adapted 
to  the  place.  This  is  the  law  now  for  the  United  States  with  regard 
to  the  irremovable  rectors.  It  was  the  earnest  recommendation 
of  the  Second  Plenary  Council  of  Baltimore  that  this  or  a similar 
plan  f examination  should  be  extended  as  far  as  possible  to  the 
appointment  to  all  the  missions  in  the  whole  country.  It  is  very 
important  for  the  people  to  realize  that  not  favor  but  real  genuine 
merit  has  been  the  moving  cause  in  the  appointment  of  their 
pastors.  The  people  have  also  the  right  that  where  a pastor  has 
really  devoted  himself  to  their  interests,  he  should  not  be  taken 
from  them  against  his  will,  unless  the  higher  interests  of  the 
Church  require  his  promotion  to  a higher  place.  Strictly  speaking 
except  in  very  rare  cases,  no  one  is  reallyi  obliged  to  accept  < a 
a higher  place. It  is  very  seldom  indeed  that  the  supreme  auth- 
ority appeals  to  the  .command  requiring  ‘‘in  virtue  of  holy 
obedience,’.’ the  acceptance  of  a higher  place.:ci  i :.:r  ' . Uji*. 

• » o .id  05  b snixiB  odj  a *.1,  ui6 

beBsais'i 


TO 


«Jci  ‘ cHiPTEE  xxm 


'iisuh 


iieq  ah  iiuir  fd^uiigkqo'iM  ;i  l u 


Summaryiof  the  subjects  treated  of  in  this  pamphlet.^  The  legislation  of  the  • 
Propaganda  consistent  from  its  emendation  of  the  first  Provincial  Council 
of  Baltimore,  in  1829,  to  the  last  declaration  of  March,  1887,  that  no  one 
can  be  removed  without  a just  cause.  No  one  to  be  punished  without  a 
trial.  The  Propaganda  facilitates  the  hearing  of  complaints.  Roman  legis- 
lation founded  c>n  natural  equity.  ' 

i 


Koman  legislation  is  traditionally  founded  on  natural  equity, 
and  a principle  once  laid  down  very  seldom  needs  recall.  From 
the  beginning  the  Propaganda  watched  with  careful  eye  all  the 
legislation  that  was  being  gradually  framed  for  this  developing 
country,  and  as  has  been  seen  It  put  a limitation  to  the  exagger- 
ated views  taken  at  times  of  the  obligation  of  priests.  Thus  It 
pointed  out  in  revising  the  First  Council  of  Baltimore  that  Bene- 


108 


diet  XIY  had  emphasized  the  ineaniug  of  the  obedience  promised 
by  the  priest  at  the  reception  of  Sacred  Orders  to  be  that  he  will 
‘ fulfill  the  duties  attached  to  the  position  to  which  he  was  assigned 
at  the  reception  of  Sacred  Orders,  and  remain  under  the  jurisdic- 
tion of  the  bishop  among  whose  clergj-  he  is  enrolled. 

The  obligation  of  obedience  was  primarily  in  connection  with 
the  place  (locus  pius)  to  which  he  was  then  attached;  and  it  is 
understood  that  he  should  not  abandon  it  without  the  permission 
of  the  bishop.  This  very  obligation  of  obedience  therefore  sup- 
poses his  permanent  assignment  to  that  place,  till  he  is  willing  to 
be  parted  from  it,  or  till  some  weighty  reason  occurs  for  his 
transfer. 

The  weight  of  this  reason  in  some  cases  must  be  tested  in  a 
•certain  defined  way,^  in  others  a certain  amount  of  leeway  is 
allowed  to  the  conscience  of  the  superior,  but  his  action,  if  not 
founded  on  justice  and  on  the  real  welfare  of  souls,  will  be  read- 
ily put  aside  by  the  higher  authority  to  whose  consideration  a 
properly  formulated  and  substantiated  complaint  is  submitted. 
The  duty  of  a priest  to  lead  a clerical  life  comes  from  his  recep- 
tion of  the  Sacrament  of  Holy  Orders,  and  in  this  his  life  is  to  be 
regulated  in  accord  with  the  general  laws  of  the  Church  concern- 
ing the  clerical  state,  v I'r 

The  special  duties  of'  ;the  individual  priest  spring  from  the  spe- 
cial office  to  which  he  is  assigned  when  admitted  to  the  priest-' 
hood.  He  also  promises  obedience  to  his  ordinary, ‘whereby,  as 
the  First  Council  of  Baltimore  in  its  second  decree  under  the'' 
guidance  of  the  Propaganda  r explains,  the  priest  is  obliged  to 
remain  in  the  same  diocese  and  to  be  subject  to  its  bishop,  till 
canonically  released. 

The  special  duties  of  a priest  in  the  United  States  spring  from 
the  oath  to  the  Propaganda  that  without  its  permission,  or  that 
of  the  Holy  See,  he  will  not^goin  a' religious  order,  and  that  for 
his  life  he  will'  devote  his  labors  to  the  salvation  of  souls  under 
the  entire  direction  and  jurisdiction  of  the  Ordinary,  for  whose 
diocese  he  is  ordained.  In  a strictly  legal  sense  this  oath  binds 
the  priest  directly  to  the  Propaganda,  whence  the  “title  of  mis- 
sion ” emanates,  and  the  Propaganda  thus  is  the  ordinary  guardian 
, of  the  rights  that  come  to  each  priest  from'  this  assumed  title  of 
ordination.  The  Propaganda  makes  a condition  that  this  “title 
of  mission  ” will  not  be  used  as  an  excuse  for  wandering  from 
one  diocese  to  another,  and  therefore  requires  that  the  missionary 
will  swear  to  Tvork  for  souls  under  the  entire  direction  and  juris- 
diction of  the  bishop,  for  whose  diocese  he  is  ordained.  This 


104, 

C • 

oath  of  the  priest  dpes  not  give  a bishop  in  a missionary  country 
any  more  extensive^power  than  a bishop  has  elsewhere. 

The  extra  duties  imposed  by  the  oath  devolve  upon  the  priest 
to  devote  himself  for  life  in  that  special  diocese  to  the  work  of 
saving  souls.  For  the  proper  understanding  of  this  it  is  impor- 
tant to  keep  in  mind  that  many  of  the  other  titles  of  ordination 
do  not  exact  or  even  suppose  any  direct  work  for  the  salvation 
of  others.  The  title  of  poverty  ” in  religious  orders,  of  benefice 
and  patrimom"  for  secular  priests,  are  often  entirely  disconnected 
from  any  work  for  the  care  of  souls,  nor  is  the  promise  of  obedi- 
ence to  the  ordinary  made  by  all  priests,  ever  invoked  to  impose 
upon  them  am"  obligation  to  hear  confessions,  to  administer  the 
sacraments  even  to  the  sick  and  dying.  There  is  not  any  strict  obli- 
gation for  a priest  ordained  under  the  title  of  mission,  by  virtue  of 
his  oath,  to  accept  the  charge  of  a parish,  however  much  the  bishop 
may  deem  it  desirable  that  he  should  do  so.  As  long  as  he 
devotes  himself  to  the  care  of  souls,  subject  to  the  rules  and 
regulations  of  the  diocese  for  which  he  was  ordained,  he  com- 
plies w-ith  the  obligation  contracted  by  his  oath.  He  may  have 
excellent  reasons,  which  may  not  even  be  appreciated  by  the 
bishop,  for  not  undertaking  a task  of  managing  a parish,  which 
may  be  seriously  distasteful  to  him. 

We  have  seen  that  for  weighty  administrative  reasons,  which 
are  not  in  any  way  connected  with  the  accusation  of  reasonable 
suspicion  of  wrong  doing,  a bishop  is  authorized  in  the  United 
States  to  transfer  certain  movable  rectors  from  one  mission  to 
another.  It  is  well  to  recall  the  earnest  admonition  and  exhorta- 
tion of  the  Second  Plenary  Council  that  bishops  do  not  undertake 
to  act  upon  this  authorization  except  after  weighing  carefully  the 
merits  of  those  transferred  and  only  for  serious  reasons.  In  other 
words,  they  are  to  be  guided  not  by  favor  or  personal  likes  and 
dislikes,  but  in  view  of  the  past  labors  and  zeal  of  those  transferred, 
and  for  the  promotion  of  the  welfare  of  souls. 

This  was  more  and  more  emphasized  by  the  Propaganda  in  the 
supplement  to  its  instruction  for  trials  of  clerics  of  1878,  when  in 
1879,  recognizing  the  occasional  utility  of  these  transfers  of 
movable  rectors  without  the  procedure  of  law.  It  laid  down 
clearly  that  ‘‘bishops  must  be  careful  not  to  transfer  priests 
from  place  to  place  against  their  will,  except  for  serious  reasons. 
But  if  there  be  question  of  removing  definitely  a rector  from  his 
office  on  account  of  delinquency,  this  must  not  be  done  without 
.a  hearing  before  the  Commission  of  Investigation.” 


105 


We  see  that  the  Propaganda  far  from  receding  from  the  principle 
of  ordinary  permanency  on  the  part  of  all  rectors  always  recognized 
here  confirms  again  the  law  of  equity  that  no  one  shall  be  punished 
without  a thorough  investigation  and  full  opportunity  of  explan- 
ation on  the  part  of  the  accused.  And  while  to-day  the  “ Commis- 
ion  of  Investigation”  has  given  way  to  the  regular  “ Episcopal 
Court,”  these  principles  of  justice  are  shown  to  be  maintained  in 
their  integrity  and  to  be  more  explicitly  developed  in  the  newest 
and  latest  decision  of  the  Propaganda,  which  insists  expressly  that 
the  form  of  procedure  laid  down  in  the  Third  Plenary  Council  for 
clerics  be  used  whenever  a charge  involving  wrong-doing  is  made 
against  a movable  rector  with  a view  to  his  removal  or  deposition. 
At  the  same  time  a specific  arrangement  is  made  that  where  a 
transfer  is  considered  not  to  excite  a suspicion  of  wrong-doing, 
but  yet  is  deemed  to  be  a serious  hardship  by  the  movable  rector, 
he  is  to  transmit  his  complaint  to  the  Propaganda,  which  will 
depute  the  Metropolitan  to  act  upon  it  if  the  complaint  is  against 
a bishop,  and  the  neighboring  Metropolitan,  if  the  complaint  is 
made  against  a Metropolitan. 

This  valuable  document  is  so  clear  and  precise  as  to  deserve 
being  transcribed  in  its  entirety.  Its  title  is  “ on  the  way  of  proce- 
dure in  changing  the  movable  rector.”  It  is  dated  May  20th,  1887, 
and  is  signed  by  Cardinal  Simeoni  as  Prefect  and  Archbishop 
Jacobini  as  Secretary,  but  in  the  name  of  the  whole  Congregation, 
and  thus  it  gives  most  authoritatively  the  latest  explicit  pronounce- 
ment of  the  Roman  authorities  for  the  equitable  treatment  of 
movable  rectors.  It  is  directed  to  His  Eminence  Cardinal  Gibbons 
for  transmission  to  all  the  archbishops  of  the  United  States,  that 
they  ma}'  in  turn  communicate  its  contents  to  the  bishops  of  their 
respective  j^rovinces. 

“In  the  Third  Plenary  Council  of  Baltimore,  tit.  X,  chap.  3, 
§§  1,  2,  as  also  in  the  instruction  of  this  Sacred  Congregation 
which  begins  ‘‘Gum  magnopere''  for  trials  o^  clerics,  the  rules  and 
regulations  were  prescribed  by  which  clerics  are  to  be  tried.  It 
was  not,  however,  defined  and  decreed  in  what  cases  the  bishops 
were  held  to  follow  the  legal  process  when  there.was  question  of 
depriving  movable  rectors  of  missions  of  their  office,  or  of  trans- 
ferring them  to  another  office. 

Now,  however,  the  Most  Eminent  Fathers  placed  over  the 
Sacred  Congregation  of  the  Propaganda,  meeting  in  General 
Assembly  on  the  28th  of  March,  1887,  have  decreed  thus:  “In the 
case  of  the  removal  or  of  a total  privation  of  the  office  of  rector 
in  punishment  of  crime  or  guilt  which  requires  disciplining,  the 


106 


canonical  procedure  in  accord  with  the  aforesaid  instruction 
{Cummagnopere)  and  with  the  decrees  of  the  Third  Plenary  Council 
must  be  followed.  If  there  be  question  of  the  transfer  of  a rec- 
tor from  one  mission  to  another,  or  even  to  an  inferior  office,  the 
ordinaries  are  not  bound  to  follow  the  canonical  procedure;  it  is, 
however,  necessary,  that  there  should  be  serious  reason  for  such 
action,  and  full  account  taken  of  the  past  merits,  as  laid  down  in 
the  Third  Plenary  Baltimore  Council,  tit.  11,  chapt.  V,  § 32.  If  in 
the  case  of  such  transfer  a complaint  is  made  to  the  Sacred 
Congregation,  the  Sacred  Congregation  will  remit  it  to  the  Metro- 
politan, or  where  there  is  question  of  a Metropolitan,  to  the  neigh- 
boring Metropolitan.” 

This  last  provision  will  be  very  much  welcomed  as  an  easy  way 
of  settling  on  the  spot  grievances  which  can  only  be  thoroughly 
appreciated  by  those  who  can  take  proper  cognizance  of  the  local 
hardships,  so  easily  inflicted  by  hasty  transfers  from  place  to 
place.  The  arguments  for  and  against  the  transfer  will  need  to 
be  accurately  noted  and  recorded  for  inspection  by  the  Propa- 
ganda. The  equity  of  the  decision  of  its  deputy  will  be  thor- 
oughly scanned  by  the  Sacred  Congregation,  which  will  nojt  fail 
to  reverse  it  if  not  in  accord  with  the  right.  Definite  rules  and 
standards  of  equity  in  such  matters  will  soon  be  the  consequence. 
The  result  will  probably  be  the  extension  in  the  not  distant  future 
to  almost  all  the  parishes  of  the  strictly  legal  irremovability 
which  is  now  granted  to  the  favored  few.  We  cannot  but  recog- 
nize that  this  was  the  desire  of  Home  -when  it  suggested  that  not 
merely  one  in  ten,  but  at  least  one  in  ten,  should  be  the  adopted 
rule  for  the  number  of  irremovable  rectors.  Practically  it  will  be 
seen  that  the  transfer  of  a movable  rector  against  his  will,  will 
be  found  so  often  in  conflict  with  the  rules  of  equity  recognized 
in  Borne,  that  it  will  be  deemed  more-  fair  to  put  almost  all  on  a 
par  with  the  irremovable  parishes. 


iToduD-Ufioi  Jilt  aiiw  Liouoa  ill  tJ'iirbaooiq  iiJDin6£W0 

iioonoO  faidT  adi  l:o  aeaiaeb  adt  dfnr  has  wm  J) 

:>Qi  fl  lo  'taiaaiiil  adi  'to  noriaoi/p  ad  »iad^  .bov/ollol  od  iewoi 
4ili  ^aatfto  'loha'tni  iiii  oi  fiava  lo  ^ladiona  oi  uoiaahn  OJio.crrofi  lot 
tf  .a-u/haoo'iq  liiOaiO£Ur>  aiii  >^7oIlo\  ot  biwod  Jon  oi«  aohnailno 
iloi/e  10*1  flOH-oof  anoi'foa  a(f  blnoda  aiailt  twdt  .vrnaHooeii  ,iavaY/od 
Jxii  irwbb  biid  8/’  athoiix  odJ  to  ii'3>bd  Jnnoo'jij  Hut  brui  «nodo5 

fAull  1*8^  *7  J«|6do  ,ri  dl)  .lioui.o’-/  vjotnitl^tl  v'cxjnaM  bii JT  adJ 
odJ  c>i  w ji  Tel-itimJ  lioua  to  adJ 

-\.ui9M  oiit  ot  ji  Hr?/  odt  ,£iojU‘:§3't!;noU 

b^ian  adtoj  ,n«tdr:)qoitaK  a toi'ioitaanp  m aieilJ  aiadTi-  to  aii^Jiicq 
'■  * ' - ' ^ >\nrxoc; 

boinoda.w  iltjn.-r  riav  ad  Hfw  inda/'^o'iq  taad  aid'i 
fld^i/o^odt  f»d  vlflo  am  dwh/  aaannvofi’^  ioqi?  »dt  no  tc 

iijooi  ad^  to  oafui.vrn^'oa  -fajjQTq  9il«t  nfio  odw'asodJ  T/i  betiiioeiqq;; 

oj  90idq  flio-it  M*jat8n«*it  vd  heKitias  yjiaHO  or  ,mi.hlnsd 

ot  bsan  niw  79't8ai^jTt  edt  bn^^  lot  eJnamn^'fiJ  adT  .eofilq 

-aqo-i^  adt  vrd  ifoitoaqaiii  lot  bob'iooai  has  botoa  /laiBiuoDB  ad 
-nodJ  ad  niw'  Yhiqab  atr  to  aoiabob  edj  ‘to  xiiupe  adT  .abflflB 
liijt  iofl  Iliv/  iloidvj^  .iioi4i3:g.a'i:gnoO  baiojiB  adt  y;‘*~  banmioa  'cld^uo 
has  aahri  aircffte*!  iiijih  adi  dtiw  bioaos  nr  ioif  ti  h aa'ioyei  OJ 
.aaaatfpaBifoa  ad^^  ad  nooa  iri’^Vie-tliiin  doi/8  ai  y/iupe  to  gb'fxsbn^fe 
omtnt  inntaib  ton  odt  nr  aowdaSra  odt  ad  fjdsdoiq  lliw  tlngai  edi 
rtrlrdavom-rrti  bi^al  vltoni?  oiLt  to  Hadahsq  odi  Hfi  aaonilfi  oJ 
^oaat‘dud  ioaaso  aV/  wst  boiovxd i^dtot  hamurg  won  si  doidw 
;7on  <t4<d,t  bota  tf  nerlv?^  ornofl  to  oibiuL  sdt  esw  exrit  tijdt  esjxn 

beiqobft  odt  arf  blnoda  .nai  ai  aao  iaaol  jfi  tnd  .nei  ni  ano 

od  iliw  innaUa/nHt  .aiotoai  aidavomerri'to  ledmna  arU  'lot  afoi 
tiiw  Jibr  aid  isawgr,  iob>a*i  aldu^fom  li  to  lataiunt  adt  iadt  neaa 
b^srn^^ooai  -^.tini^to  aoluy  ad^t  dilyr  doiBnoa  at  natto  oa  bnoot  ad 
ib  no.dls  iao£f^iirte{  oi  irijt.aiom  bontaab  sd  Hiw  ii  tadi  ,amoR  ai 
t , . . .sada’tisq  aldifvotiioTn  adi  djiw  lijq 


Ivv  i^MUnCk  j'-^stsil  M>aMfed  <'  - 


..jii.^m''^xir> 


’*'»-*  .«&»««  WiKO'S.  J5.?»s«r' 

-rli'.o  f*  .<;#  Smthss-m;  ->»*»i4*fo-  mtH  MatH  s^-jp  ^-.mS^ds, 


» 


'■  ^ fi',  . 


•il  ^li'f 
'f.iv 


•III  HjlT'IAHD 


' t ■'• 

;<v  Iv 


t lo 


M\ 


'■ 

]nii  <ji' 


•!i 


m^v. 


■ '■M' 

' '^4.: 


1 y /ijti't/Ji,.» 


> liomiQli  U;T>Vfr..^ 


■*'  ^ ii  .r/  .T  xr.-.  .u>'  ) ^o 


. _ . - - .iT9fa»TobrvfrU,>i#yfti'^ 

■/>  fhii»i9r}  srlfT  ♦:te*f:-  ■ 

• y»Y«Tfc  C^W<r-4«)  4.1^  * •-iT  . ^ . . ..  ^ ' ...  ^ ’ ■- 


, ‘ i,  - - --'T  SrlfT  .; 

t>#fi  v>  97iM^  ^dJ  i$i 

.Hfyihfh  us  as  a/cu^^ 


if/  Htiri/ji  } 


.lAio-;  y.y  ^ .;i  i i^fund  od  j-<tj  rifoi^d^  fo  u»s3i)f^d  : 

'^^liiaE  :'^  i*'^..-t  9aluf>(^  /htmi  nil  joc/'r^/y^a^ 

'yikdifs:. 

”*’  "P.-Jy  - tvs  jyftwOo  ^Sjd*vi  (rHJjiiUi'SfSfe  if*f-Lilx  <1 

Septan  fliSi  l<5  Jsl»4f3/i  Hi  %iili>i'Ji.’^ Hi  t'tSi^fr  ^- 


:4 


